DIRECTIVES TRANSMITTAL

Number

EEOC915.003

Date

4/19/06

SUBJECT: EEOC COMPLIANCE MANUAL

PURPOSE: This transmittal covers the issuance of Section 15 of the new ComplianceManual, on “Race and Color Discrimination.” The Manual Sectionprovides guidance on analyzing charges of race and color discriminationunder Title VII of the Civil Rights Act of 1964.

ORIGINATOR: Office of Legal Counsel, Title VII/ADEA/EPA Division

EFFECTIVE DATE: Upon receipt

DISTRIBUTION: EEOC Compliance Manual holders

/S/

Cari M. DominguezChair

SECTION 15: RACE and COLOR DISCRIMINATIONTABLE OF CONTENTS

15-I OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

15-II WHAT IS “RACE” DISCRIMINATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15-III WHAT IS “COLOR” DISCRIMINATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15-IV RELATED PROTECTED BASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. NATIONAL ORIGIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8B. RELIGION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8C. INTERSECTIONAL DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

15-V EVALUATING EMPLOYMENT DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9A. RACIAL DISPARATE TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Recognizing Racial Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92. Conducting a Thorough Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

• Potential Evidence of Racial Disparate Treatment• Employer Credibility

3. Recognizing “Pattern or Practice” Race Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19B. RACIAL DISPARATE IMPACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

15-VI EQUAL ACCESS TO JOBS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22A. RECRUITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1. Job Advertisements and Employment Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232. Word-of-Mouth Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233. Homogeneous Recruitment Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244. Discriminatory Screening of Recruits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. HIRING AND PROMOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251. Uniform and Consistently Applied Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252. Job-Related Standards, Consistent with Business Necessity . . . . . . . . . . . . . . . . . . . . . . . . . 27

• Education Requirements• Employment Testing• Conviction and Arrest Records

C. DIVERSITY AND AFFIRMATIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

15-VII EQUAL OPPORTUNITY FOR JOB SUCCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35A. RACIAL HARASSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

1. Unwelcome Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362. Severe or Pervasive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363. Employer Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

• Conduct of Supervisors• Conduct of Owner, President, Partners, or Officers• Conduct of Co-workers and Non-employees

B. RACIAL BIAS IN OTHER EMPLOYMENT TERMS AND CONDITIONS . . . . . . . . . . . . . . . . . . . 441. Work Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442. Performance Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453. Training and Constructive Feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464. Workplace Networks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475. Appearance and Grooming Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497. Discipline and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

C. RETALIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

15-VIII REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

15-IX LPROACTIVE PREVENTION7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

1 See United Steelworkers of America v. Weber, 443 U.S. 193, 202-03 (1979) (also noting: the

1962 unemployment rate of Blacks and other people of color was 124 percent higher than that of W hites).

2 The following terms are used interchangeably in this document due to their frequent and

accepted vernacular usage: “Black” and “African American”; “White” and “Caucasian”; “Asian” and “Asian

American”; “American Indian” and “Native American”; and “Latino” and “Hispanic.” The document will

refer to non-Whites generally as “people of color.”

3 See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 763 (1976) (“Congress intended to

prohibit all practices in whatever form which create inequality in employment opportunity due to

discrimination [prohibited by Title VII] . . . and ordained that its policy of outlawing such discrimination

should have the highest priority.”) (citations omitted). For a good discussion of the history of Title VII

enfo rcem ent , s ee C E L E B R A T I N G T H E 4 0 T H A N N I V E R S A R Y O F T I T L E VII (2004) , a t

http://www.eeoc.gov/abouteeoc/40th/panel/; and THE STORY OF THE UNITED STATES EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION: ENSURING THE PROMISE OF OPPORTUNITY FOR 35 YEARS (2000), available at

http://www.eeoc.gov/abouteeoc/35th/index.html.

4 See EEOC Charge Statistics, at http://www.eeoc.gov/stats/charges.html.

SECTION 15: RACE and COLOR DISCRIMINATION

15-I OVERVIEW

With the enactment of the Civil Rights Act of 1964, Congress sought to eliminate theproblems of segregation and discrimination in the United States. The impetus for the Act was thecivil rights movement of the 1950s and 1960s, which challenged the denial of the right of Blacksto participate equally in society.

The employment title of the Act — Title VII — covers employment discrimination basedon race, color, religion, sex, national origin, or protected activity. Title VII’s prohibitions againstrace and color discrimination were aimed at ending a system in which Blacks were “largelyrelegated to unskilled and semi-skilled jobs.”1 However, Congress drafted the statute broadly tocover race or color discrimination against anyone – Whites, Blacks, Asians, Latinos, Arabs,American Indians and Alaska Natives, Native Hawaiians and Pacific Islanders, persons of more thanone race, and all other persons.2

Today, the national policy of nondiscrimination is firmly rooted in the law.3 In addition, itgenerally is agreed that equal opportunity has increased dramatically in America, including inemployment. Blacks and other people of color now work in virtually every field, and opportunitiesare increasing at every level.

Yet significant work remains to be done. Charges alleging race discrimination inemployment accounted for 35.5 percent of the Commission’s 2005 charge receipts, making race stillthe most-alleged basis of employment discrimination under federal law.4 In addition, several privatestudies conducted in the early 2000s provide telling evidence that race discrimination inemployment persists. A 2003 study in Milwaukee found that Whites with a criminal record receivedjob call-backs at a rate more than three times that of Blacks with the same criminal record, and even

5 See Devah Pager, The Mark of a Criminal Record , AMERICAN JOURNAL OF SOCIOLOGY (Mar.

2003) (audit study sending matched pairs of Black and White male college students with similar self-

presentation styles to apply for 350 low-skilled jobs advertised in the Milwaukee classifieds; purpose was to

test the degree to which a criminal record affects subsequent employment opportunities; study found that

when the White “testers” were assigned a fake 18-month prison record – for possession of cocaine with intent

to sell – they were called back by employers 17% of the time, while the Black testers assigned the same

record were called back only 5% of the time; Whites without a criminal record had a 34% call back rate

versus a 14% call back rate for Blacks withou t a criminal record ), available at

http://www.northwestern.edu/ipr/publications/papers/2003/pagerajs.pdf.

6 See Jenny Bussey and John Trasviña, Racial Preferences: The Treatment of White and

African American Job Applicants by Temporary Employment Agencies in California, at

http://www.impactfund.org/DRC%20December%202003%20Report.pdf (Dec. 2003) (audit study sending

specially trained matched pairs of White and Black job applicants to temporary agencies to determine whether

one applicant received better treatment in one way or another, such as in obtaining an interview or job offer,

higher pay, or longer job assignment; study found that the temporary agencies audited in Los Angeles

preferred the White applicants 4 to 1 over the African American applicants, and more than 2 to 1 in San

Francisco).

7 See Marianne Bertrand and Sendhil Mullainathan, Are Emily and Brendan More Employable

than Lakisha and Jamal? A Field Experiment on Labor M arket Discrimination, at

http://gsb.uchicago.edu/pdf/bertrand.pdf (Nov. 18, 2002) (after randomly assigning names common among

Whites or Blacks to résumés of similar quality, Professors Bertrand and Mullainathan responded to over 1300

job advertisements in Boston and Chicago, and found that the hypothetical White applicants were 50 percent

more likely to receive responses seeking interviews than the hypothetical Black applicants; moreover, the

study revealed that improvements in résumé quality significantly increased the chances for a callback for

Whites but did not significantly increase the chances for Blacks).

8 See generally the Census 2000 Special EEO Tabulation (Employment by EEO-1 Job

Categories), available at http://www.census.gov/eeo2000/index.html.

15-2

at a rate higher than Blacks without a criminal record.5 A 2003 study in California found thattemporary agencies preferred White applicants three to one over African American applicants.6

And, a 2002 study in Boston and Chicago found that résumés of persons with names commonamong Whites were 50 percent more likely to generate a request for an interview than equallyimpressive résumés of persons with names common among Blacks.7

Moreover, racial and ethnic disparities still exist in the labor market. People of color aremore likely than Whites to work in lower-paying jobs and less likely to work in higher-paying jobs.8

Unlawful employment discrimination is one of the reasons for these disparities. Therefore,vigorous law enforcement, and proactive prevention of discrimination – i.e., enhanced outreach,education, and technical assistance to promote voluntary compliance – remain critical to ensuringthat race and color play no part in employment decisions.

9 Section 1981 of the Civil Rights Act of 1866 – 42 U.S.C. § 1981 – also provides a federal

remedy for race discrimination in employment. Section 1981 prohibits race discrimination in the making and

enforcing of contracts, which includes, but is not limited to, most employment relationships. While Title VII

provides that private employers must have 15 or more employees to be covered, Section 1981 covers

employers with any number of employees. The EEOC does not enforce Section 1981.

10 The analysis in this Section generally applies to private, state and local, and federal sector

complaints of race or color discrimination under Title VII. Moreover, while this document focuses on

discrimination by employers, Title VII also prohibits discriminatory practices by labor organizations,

including union membership and representation, and employment agencies, including referral practices.

11 Best practices are proactive measures designed to reduce the likelihood of Title VII violations

and to address impediments to equal employment opportunity. A comprehensive overview of best practices

is presented in the 1998 report “‘Best’ Equal Employment Opportunity Policies, Programs, and Practices in

the Private Sector,” which was prepared by an EEOC task force headed by former Commissioner Reginald

E. Jones. See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, “BEST” EQUAL EMPLOYMENT OPPORTUNITY

POLICIES, PROGRAMS, AND PRACTICES IN THE PRIVATE SECTOR (2d ed. 1998). According to the report, a

“best practice”: complies with the law; promotes equal employment opportunity; shows management

commitment and accountability; ensures management and employee communication; produces noteworthy

results; and does no t result in un fairness. The complete report is available at

http://www.eeoc.gov/abouteeoc/task_reports/practice.html.

12 See OFFICE OF MANAGEMENT AND BUDGET, PROVISIONAL GUIDANCE ON THE

IMPLEMENTATION OF THE 1997 STANDARDS FOR FEDERAL DATA ON RACE AND ETHNICITY 6-7 (12/15/00).

13 See id. 9-10.

15-3

The purpose of this Manual Section is to provide guidance on Title VII’s prohibition againstworkplace discrimination based on race or color.9 It discusses coverage issues, the importance ofconducting a thorough investigation, various employer practices, and remedies for a violation.10 TheManual Section includes numerous examples, as well as guidance reflecting the Commission’sstrong interest in proactive prevention and “best practices.”11

15-II WHAT IS “RACE” DISCRIMINATION?

Title VII prohibits employer actions that discriminate, by motivation or impact, againstpersons because of race. Title VII does not contain a definition of “race,” nor has the Commissionadopted one. For the collection of federal data on race and ethnicity, the Office of Management andBudget (OMB) has provided the following five racial categories: American Indian or AlaskaNative; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and White;and one ethnicity category, Hispanic or Latino.12 OMB has made clear that these categories are“social-political constructs . . . and should not be interpreted as being genetic, biological, oranthropological in nature.”13

14 See also § 15-IV.A., infra.

15 See also § 15-VII.B.5, infra, on Appearance and Grooming Standards.

16 See Centers for Disease Control and Prevention Fact Sheet, available at

http://www.cdc.gov/od/oc/media/pressrel/fs040402.htm (last visited 11/30/05).

17 See Section 3: Employee Benefits, EEOC Compliance Manual, Title VII/EPA Issues § II.B.,

available at http://www.eeoc.gov/policy/docs/benefits.html.

18 See supra note 7; cf. El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (“names

are often a proxy for race and ethnicity”).

19 See also § 15-VII.B.5, infra, on Appearance and Grooming Standards.

15-4

Title VII’s prohibition of race discrimination generally encompasses:

! Ancestry: Employment discrimination because of racial or ethnic ancestry.Discrimination against a person because of his or her ancestry can violate Title VII’sprohibition against race discrimination. Note that there can be considerable overlapbetween “race” and “national origin,” but they are not identical.14 For example,discrimination against a Chinese American might be targeted at her Asian ancestryand not her Chinese national origin. In that case, she would have a claim ofdiscrimination based on race, not national origin.

! Physical Characteristics: Employment discrimination based on a person’s physicalcharacteristics associated with race, such as a person’s color, hair, facial features,height and weight.15

! Race-linked Illness: Discrimination based on race-linked illnesses. For example,sickle cell anemia is a genetically-transmitted disease that affects primarily personsof African descent. Other diseases, while not linked directly to race or ethnicity,may nevertheless have a disproportionate impact. For example, Native Hawaiianshave a disproportionately high incidence of diabetes.16 If the employer appliesfacially neutral standards to exclude treatment for conditions or risks thatdisproportionately affect employees on the basis of race or ethnicity, the employermust show that the standards are based on generally accepted medical criteria.17

! Culture: Employment discrimination because of cultural characteristics related torace or ethnicity. Title VII prohibits employment discrimination against a personbecause of cultural characteristics often linked to race or ethnicity, such as a person’sname,18 cultural dress and grooming practices,19 or accent or manner of speech. Forexample, an employment decision based on a person having a so-called “Blackaccent,” or “sounding White,” violates Title VII if the accent or manner of speechdoes not materially interfere with the ability to perform job duties.

20 See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988,

994-95 (6th Cir. 1999) (holding employee stated a claim under Title VII when he alleged that company owner

discriminated against him after his biracial child visited him at work: “A white employee who is discharged

because his child is biracial is discriminated against on the basis of his race, even though the root animus for

the discrimination is a prejudice against the biracial child” because “the essence of the alleged discrimination

. . . is the contrast in races.”).

21 Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (holding that an employer’s

refusal to hire a subgroup of women – those with preschool-age children – was sex-based).

22 See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976) (Title VII prohibits

race discrimination against all persons, including Whites).

23 See, e.g., Mattioda v. White, 323 F.3d 1288 (10th Cir. 2003) (Caucasian plaintiff failed to

establish prima facie case because he did not present “background circumstances that support an inference

that the defendant is one of those unusual employers who discriminates against the majority”); Phelan v. City

of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003) (in cases of reverse race discrimination, White employee

must show background circumstances demonstrating that particular employer has reason or inclination to

discriminate invidiously against whites or evidence that there is something “fishy” about facts at hand);

Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir. 2002) (in a Title VII claim of reverse race discrimination,

employee must show that defendant is that unusual employer who discriminates against the majority , but if

the employee fails to make this showing, he may still proceed by producing direct evidence of

15-5

! Perception: Employment discrimination against an individual based on a belief thatthe individual is a member of a particular racial group, regardless of how theindividual identifies himself. Discrimination against an individual based on aperception of his or her race violates Title VII even if that perception is wrong.

! Association: Employment discrimination against an individual because of his/herassociation with someone of a particular race. For example, it is unlawful todiscriminate against a White person because he or she is married to an AfricanAmerican or has a multiracial child,20 or because he or she maintains friendships orotherwise associates with persons of a certain race.

! Subgroup or “Race Plus”: Title VII prohibits discrimination against a subgroupof persons in a racial group because they have certain attributes in addition to theirrace. Thus, for example, it would violate Title VII for an employer to reject Blackwomen with preschool age children, while not rejecting other women with preschoolage children.21

! “Reverse” Race Discrimination: Title VII prohibits race discrimination against allpersons, including Caucasians.22 A plaintiff may prove a claim of discriminationthrough direct or circumstantial evidence. Some courts, however, take the positionthat if a White person relies on circumstantial evidence to establish a reversediscrimination claim, he or she must meet a heightened standard of proof.23 The

discrimination). But see, e.g., Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir.1999) (rejecting heightened

“background circumstances” standard); Lucas v. Dole, 835 F.2d 532, 533-34 (4th Cir. 1987) (declining to

decide whether a “higher prima facie burden” applies in reverse discrimination cases).

24 See McDonald , 427 U.S. at 280 (“Title VII prohibits racial discrimination against the white

petitioners in this case upon the same standards as would be applicable were they Negroes”) (emphasis

added).

25 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

26 See Walker v. Secretary of the Treasury, IRS, 713 F. Supp. 403, 405-08 (N.D. Ga. 1989)

(discrimination based on color not necessarily the same as race; cause of action available for suit by light

skinned Black person against a dark skinned Black person), aff’d 953 F.2d 650 (11th Cir. 1992); cf. Rodriguez

v. Guttuso, 795 F. Supp. 860, 865 (N.D. Ill. 1992) (Fair Housing claim succeeded on statutory ground of

“color” discrimination where light-complexioned Latino defendant refused to rent to Latino couple because

husband was a dark-complexioned Latino).

27 See Santiago v. Stryker Corp., 10 F. Supp. 2d 93, 96 (D.P.R. 1998) (holding dark-

complexioned Puerto Rican citizen replaced by light-complexioned Puerto Rican citizen could establish a

prima facie case of “color” discrimination (quoting, with approval, Felix v. Marquez, 24 EPD ¶ 31,279

(D.D.C.1980): “‘Color may be a rare claim, because color is usually mixed with or subordinated to claims

of race discrimination, but considering the mixture of races and ancestral national origins in Puerto Rico,

color may be the most practical claim to present.’”)).

15-6

Commission, in contrast, applies the same standard of proof to all racediscrimination claims, regardless of the victim’s race or the type of evidence used.24

In either case, the ultimate burden of persuasion remains always on the plaintiff.25

15-III WHAT IS “COLOR” DISCRIMINATION?

Title VII prohibits employment discrimination because of “color” as a basis separately listedin the statute. The statute does not define “color.” The courts and the Commission read “color” tohave its commonly understood meaning – pigmentation, complexion, or skin shade or tone. Thus,color discrimination occurs when a person is discriminated against based on the lightness, darkness,or other color characteristic of the person. Even though race and color clearly overlap, they are notsynonymous.26 Thus, color discrimination can occur between persons of different races orethnicities, or between persons of the same race or ethnicity.27

EXAMPLE 1COLOR-BASED HARASSMENT

James, a light-complexioned African American, has worked as awaiter at a restaurant for over a year. His manager, a brown-complexioned African American, has frequently made offensivecomments and jokes about James’s skin color, causing him to losesleep and dread coming in to work. James’s requests that the conductstop only intensified the abuse. James has been subjected to

28 See, e.g., Dixit v. City of New York Dep’t of General Servs., 972 F. Supp. 730, 735 (S.D.N.Y.

1997) (holding that a charge that alleged discrimination on the basis of being “Asian Indian” sufficed to raise

both race and national origin because EEOC could reasonably be expected to investigate both).

29 Although a lawsuit can encompass any claim that can reasonably be expected to flow from

the charge of discrimination, some courts narrowly construe what can reasonably be expected to flow.

Compare, e.g., Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124 (4th Cir. 2002) (plaintiff whose charge alleged

only race discrimination could not later bring suit based on, inter alia, color) with , e.g., Deravin v. Kerik, 335

F.3d 195 (2d Cir. 2003) (African American who checked “national origin” in his charge, alleging preferential

treatment of Irish Americans, could bring subsequent lawsuit based on race).

15-7

harassment in the form of a hostile work environment, based on hiscolor. (See § 15-VII.A. for a discussion of harassment.)

EXAMPLE 2COLOR-BASED EMPLOYMENT DECISIONS

Melanie, a brown-complexioned Latina, works as a sales clerk for amajor department store. She applies for a promotion to be theCounter Manager for a major line of beauty products, but theemployer denies her the promotion because the vendor prefers a“light skinned representative” to manage its product line at thisparticular location. The employer has unlawfully discriminated onthe basis of color.

Throughout the remainder of this Manual Section, the term “race,” rather than “color,”generally is used. This is done for stylistic reasons, as well as to reflect that many more race claimsare made each year than color claims. However, the same analyses apply to both race and color.

15-IV RELATED PROTECTED BASES

Multiple protected bases of discrimination can be raised by the same set of facts, bothbecause negative stereotypes and biases may be directed at more than one protected basis at a time,and because certain protected bases overlap considerably. Thus, for example, a discriminationcomplaint by an “Asian Indian” can implicate race, color, and national origin,28 as can, for example,a complaint by a Black person from an African nation, or by a dark-skinned Latino. For Title VIIpurposes, the question is whether any prohibited factors led to an adverse employment action, aloneor combined.

All bases of discrimination that are reasonably implicated by the facts should be includedin the charge or complaint (e.g., race, color, national origin, religion, sex, etc.). Failure to includeall possible bases may result in a court dismissing a legitimate claim.29

30 Cf. St. Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring)

(noting that, according to EEOC’s definition of “national origin” at 29 C.F.R. § 1606.1, “in the Title VII

context, the terms [race and national origin] overlap as a legal matter,” and reading the majority opinion to

state only that § 1981 does not cover discrimination where the two do not overlap, i.e., where the

discrimination is based on “birthplace alone,” which is purely national origin); Perkins v. Lake County Dep’t

of Utils ., 860 F. Supp. 1262, 1272-73 (N.D. Ohio 1994) (listing the § 1981 cases in which courts engaged in

what it called “mental gymnastics” to define “race” and to distinguish it from national origin).

31 Race and national origin also clearly overlap with respect to American Indians, because they

often are perceived in racial terms and they originate from tribes that “were at one time considered to be

nations by both the colonizing countries and later the United States.” Dawavendewa v. Salt River Project

Agric. Improvement and Powers Distr., 154 F.3d 1117, 1119-20 (9th Cir. 1998). Thus, an allegation that an

employer discriminated against an American Indian may be analyzed as either race discrimination or national

origin discrimination. See Perkins, 860 F. Supp. at 1273 n.7 (noting that courts have analyzed discrimination

against American Indians in terms of both national origin and race discrimination).

32 See Jeffries v. Harris County Comty. Action Comm’n , 615 F.2d 1025, 1032-34 (5th Cir. 1980)

(“we hold that when a Title VII plaintiff alleges that an employer discriminates against black females, the fact

that black males and white females are not subject to discrimination is irrelevant”). For a discussion of the

progress that women of color have made, as well as stubborn patterns of stagnation, see EEOC’s study titled

15-8

A. NATIONAL ORIGIN

In forbidding “national origin” discrimination, Title VII prohibits the denial of equalemployment opportunity because of the place of origin of an individual or his or her ancestors, orbecause an individual has the physical, cultural, or linguistic characteristics of a national origingroup. National origin and race often overlap because persons who themselves are, or whoseancestors were, of the same national origin frequently are of the same race.30 The overlap betweenrace and national origin is particularly clear in the case of Asian Americans.31 For a thoroughdiscussion of national origin discrimination, see Section 13: National Origin Discrimination(2002), available at http://www.eeoc.gov/policy/docs/national-origin.html, and see Guidelines onDiscrimination Because of National Origin, at 29 C.F.R. § 1606.1.

B. RELIGION

Title VII’s prohibition against race discrimination also may overlap with its prohibitionagainst discrimination based on religion. Both race and religion might be implicated where, for example, an employer discriminates against an employee based on the employee’s belief in areligion tied to a particular race or ethnicity (e.g., Hinduism/Asians).

C. INTERSECTIONAL DISCRIMINATION

Title VII prohibits discrimination not just because of one protected trait (e.g., race), but alsobecause of the intersection of two or more protected bases (e.g., race and sex). For example, TitleVII prohibits discrimination against African American women even if the employer does notdiscriminate against White women or African American men.32 Likewise, Title VII protects Asian

W OMEN OF COLOR: THEIR EMPLOYMEN T IN THE PRIVATE SECTOR (2003), available at

http://www.eeoc.gov/stats/reports/womenofcolor/index.html.

33 Lam v. University of Hawaii, 40 F.3d 1551, 1561-62 (9th Cir. 1994) (holding lower court

erred when it treated the claim of an Asian woman in terms of race or sex separately; lower court should have

considered whether discrimination occurred because of the plaintiff’s combined race and sex).

34 See Peter Blanck et al., The Emerging Workforce of Entrepreneurs with Disabilities:

Preliminary Study of Entrepreneurship in Iowa, 85 IOWA L. REV. 1583 n.157 (2000) (African American

women with disabilities disproportionately disadvantaged in employment opportunities). The Americans with

Disabilities Act of 1990 (ADA) forbids employers with 15 or more employees from discriminating against

qualified individuals with disabilities. See 42 U.S.C. §§ 12101 et seq. Numerous EEOC resources explaining

the ADA can be found on the Commission’s web site at www.eeoc.gov.

35 The Age Discrimination in Employment Act of 1967 (ADEA) forbids employers with 20 or

more employees from discriminating against applicants or employees age 40 and over because of their age.

See 29 U.S.C. §§ 621 et seq.

36 However, note that under certain circumstances the statute permits “a business or enterprise

on or near an Indian reservation” to give a preference to “an Indian living on or near a reservation.”

42 U.S.C. § 2000e-2(i); Section 2: Threshold Issues, EEOC Compl. Man., § 2-II.B.4.ii, at

http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-b-ii. See also § 15-VI.C, infra, discussing

diversity and affirmative action.

15-9

American women from discrimination based on stereotypes and assumptions about them “even inthe absence of discrimination against Asian American men or White women.”33 The law alsoprohibits individuals from being subjected to discrimination because of the intersection of their raceand a trait covered by another EEO statute – e.g., race and disability,34 or race and age.35

15-V EVALUATING EMPLOYMENT DECISIONS

Race and color cases generally fall under one of two categories, depending on whichcategory most suits the facts – disparate treatment and disparate impact. Disparate treatmentdiscrimination occurs when race or another protected trait is a motivating factor in how anindividual is treated. Disparate impact discrimination occurs when a neutral policy or practice hasa significant negative impact on one or more protected groups, and either the policy or practice isnot job-related and consistent with business necessity or there is a less discriminatory alternativeand the employer has refused to adopt it.

A. RACIAL DISPARATE TREATMENT

1. Recognizing Racial Motive

Title VII is violated if race was all or part of the motivation for an employment decision.36

The most obvious violation is a decision driven by racial animus.

37 See Thomas v. Eastman Kodak Co., 183 F.3d 38, 42, 59-61 (1st Cir. 1999) (holding layoff

could be found unlawful where performance evaluations on which layoffs were based were racially biased,

and discussing the longstanding recognition that unlawful discrimination can stem from stereotyping and

cognitive bias, as well as from conscious animus). For an academic discussion of the role unconscious bias

can play in discrimination, see also Charles R. Lawrence III, The Id, the Ego, and Equal Protection:

Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987).

38 For example, although a “personality conflict” can be a legitimate, nondiscriminatory reason

for an employment decision, the personality conflict must not be rooted in any employer racial bias toward

the employee. See generally Chad Derum and Karen Engle, The Rise of the Personal Animosity Presumption

in Title VII and the Return of “No Cause” Employment, 81 TEX. L. REV. 1177, 1224-47 (2003).

15-10

EXAMPLE 3RACIAL ANIMUS

The employer is a family-owned construction company in need of aconstruction manager for one of its work crews. Dexter, an AfricanAmerican, is new to the area and applies for the job. He held thesame position with another company before relocating. Dexter isrejected. When he finds out that a less-qualified White person washired instead of him, Dexter alleges discrimination. The companysecretary credibly testifies that she overheard an argument betweenthe owner and his son over whether Dexter should be hired. BecauseDexter was clearly the most qualified applicant, the son wanted tohire Dexter, but the owner did not. At one point the secretary heardthe owner say: “As long as I’m running this company I won’t havea Black man doing a White man’s job!” The employer has violatedTitle VII.

Racially biased decisionmaking and treatment, however, are not always conscious.37 Thestatute thus covers not only decisions driven by racial animosity, but also decisions infected bystereotyped thinking or other forms of less conscious bias.38

EXAMPLE 4RACIAL STEREOTYPING OR BIAS

Charles, an African American, files a charge alleging that theemployer, a retailer, used an interview to discriminate against him infavor of a less experienced White applicant. During the EEOCinvestigator’s discussion with the hiring manager, she notices that thehiring manager’s statements are peppered with comments such as“we were looking for a clean cut image,” and “this is a sophisticatedupscale location . . . I have to make sure the people I hire have, youknow, the ‘soft-skills’ we need.” Knowing that these statements

39 See PHILIP MOSS & CHRIS TILLY, STORIES EMPLOYERS TELL: RACE, SKILL, AND HIRING IN

AMERICA (2001) (discussing wide-ranging survey of employers in major U.S. cities regarding skills

employers seek for jobs requiring no more than a high school education; concluding that in this segment of

labor market racial disparities are caused by hard-to-separate mix of objective skill differences, cultural gaps,

and employer racial bias in assessing skills, particularly “soft skills,” i.e., positive attitude, interaction skills,

motivation, dependability).

40 See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (disparate

treatment liability “does not depend on why the employer discriminates but rather on the explicit terms of the

discrimination”); Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987) (though there was “no

suggestion below that the Unions held any racial animus against or denigrated Blacks generally,” Unions

violated Title VII and § 1981 by intentionally not pressing the work grievances of Black employees so as not

to antagonize the employer or upset W hite workers).

41 Cf. Rucker v. Higher Educational Aids Bd., 669 F.2d 1179 (7th Cir. 1982) (Black employee

had viable retaliation claim for opposing employer’s rejection of White person for promotion to youth

counselor on grounds that the predominantly Black community preferred a Black counselor: stating “Title

VII is a blanket prohibition of racial discrimination, rational and irrational alike, even more so than of other

forms of discrimination attacked in Title VII . . . . [Thus,] it is clearly forbidden by Title VII to refuse on

racial grounds to hire someone because your customers or clientele do not like his race.”).

42 See 42 U.S.C. § 2000e-2(e)(1) (Title VII’s “bona fide occupational qualification” (BFOQ)

exception applies to all Title VII bases except race and color); 42 U.S.C. § 2000e-2(k)(2) (“business

necessity” defense available in disparate impact cases is not available in intentional discrimination cases).

15-11

could be reflective of racial stereotyping and bias,39 the investigatorevaluates the employer’s decisionmaking very carefully. Theinvestigator interviews Charles’s most recent employer, who tells theinvestigator that “customers just loved working with Charles . . . hewas one of our most effective and motivated employees.” Theinvestigator also interviews the person hired and finds no basis forbelieving her “soft skills,” or her “image,” were any better thanCharles’s. In addition, the investigator notices that, like the personhired over Charles, the rest of the staff also is White even though thequalified labor market is significantly more diverse. The investigatorconcludes that the employer rejected Charles based on racialstereotyping or bias.

Title VII also does not permit racially motivated decisions driven by business concerns – forexample, concerns about the effect on employee relations,40 or the negative reaction of clients orcustomers.41 Nor may race or color ever be a bona fide occupational qualification under Title VII.42

EXAMPLE 5RACIAL STEERING OR ASSIGNMENT

An employer admits that it usually assigns Black and AsianAmerican salespersons to sales territories with a high percentage of

43 See 42 U.S.C. § 2000e-2(a) ((1) unlawful to discriminate in, among other things,

compensation, terms, conditions, or privileges of employment, because of such individual’s race, etc; (2)

unlawful to deprive employment opportunities by limiting, segregating, or classifying employees because of

race or other Title VII-protected traits); Johnson v. Zema Sys. Corp., 170 F.3d 734, 743-44 (7th Cir. 1999)

(African American Plaintiff who alleged he was fired because of race could survive summary judgment

because a jury could infer from unlawful segregation and job limitations – i.e, African-American salespersons

were required to serve predominantly African-American accounts, and White salespersons were required to

serve accounts owned or frequented by Whites – that the employer’s stated nondiscriminatory reason for

firing Plaintiff was pretext); cf. Ferrill v. The Parker Group, Inc., 168 F.3d 468, 472-73 & 475 n.7 (11th Cir.

1999) (holding liable under § 1981 telephone marketing firm that admittedly assigned Black employees to

make calls to Black households, and White employees to make calls to White households).

44 E.g., Ray v. University of AK, 868 F. Supp. 1104, 1126-27 (E.D. Ark. 1994) (even if race

could be a BFOQ, customer preference could not satisfy the defense); Rucker, at note 41, supra.

15-12

Blacks and Asian Americans. It is uncontested that the employerdoes not harbor ill-will toward either group. Instead, the employerbelieves they will better serve sales territories with high percentagesof Blacks and Asian Americans, and thus increase sales to the benefitof the firm’s bottom line and their careers. Charges are filed byemployees who want the opportunity to work in territories regardlessof their racial makeup. The employer has violated Title VII, whichprohibits employers from depriving employees of employmentopportunities by limiting, segregating, or classifying them on thebasis of race.43

EXAMPLE 6YIELDING TO CUSTOMERS’ RACIAL PREFERENCES

The employer is a home care agency that hires out aides to providepersonal, in-home assistance to elderly, disabled, and ill persons. Ithas a mostly White clientele. Many of its clients have expressed adesire for White home care aides. Gladys, an African American aideat another agency, applies for a job opening with the employerbecause it pays more than her current job. She is well qualified andhas received excellent performance reviews in her current position.The employer wants to hire Gladys but ultimately decides not tobecause it believes its clientele would not be comfortable with anAfrican American aide. The employer has violated Title VII becausecustomer preference is not a defense to race discrimination.44

45 See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d Cir. 1996) (“It has

become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some

other less odious intention to what is in reality discriminatory behavior. In other words, while discriminatory

conduct persists, violators have learned not to leave the proverbial ‘smoking gun’ behind.”); cf. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 801 (1973) (“it is abundantly clear that Title VII tolerates no racial

discrimination, subtle or otherwise”).

46 Circumstantial evidence can be just as useful and persuasive as direct evidence, and

sometimes more so. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“The reason for treating

circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only

sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”) (citation omitted).

47 See, e.g., Ash v. Tyson Foods, Inc., No. 05-379, 2006 WL 386343, at *1 (U.S. Feb. 21, 2006)

(per curiam) (referring to African American men as “boy” could be evidence of discrimination without any

explicit racial modifiers: “Although it is true the disputed word will not always be evidence of racial animus,

it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on

various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the

Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed

term probative of bias, the court's decision is erroneous.”); McGinest v. GTE Serv. Corp., 360 F.3d 1103,

1117 (9th Cir. 2004) (“The reference to McGinest as a ‘drug dealer’ might certainly be deemed to be a code

word or phrase. In fact, reported cases have recognized the racial motivations behind th is and other

comments and slurs experienced by McGinest. . . . GTE’s attempt to deny the possible racial overtones of

many of the comments made to McGinest or uttered in his presence indicates a willful blindness to racial

stereotyping.”) (citations omitted); Aman ,85 F.3d at 1083 (supervisor’s statement to Black employee that he

would get rid of “all of you” could be seen, in context, as conveying a racially offensive message).

15-13

2. Conducting a Thorough Investigation

Because discrimination often is subtle, and there rarely is a “smoking gun,”45 determiningwhether race played a role in the decisionmaking requires examination of all of the surrounding factsand circumstances.46 The presence or absence of any one piece of evidence often will not bedeterminative. Sources of information can include witness statements, including consideration oftheir credibility; documents; direct observation; and statistical evidence such as EEO-1 data, amongothers. See EEOC Compl. Man., Vol. I, Sec. 26, “Selection and Analysis of Evidence.” A non-exhaustive list of important areas of inquiry and analysis is set out below.

Potential Evidence of Racial Disparate Treatment

! Race-related statements (oral or written) made by decisionmakers or personsinfluential to the decision. Race-related statements include not only slurs andpatently biased statements, but also “code words” that are purportedly neutral ontheir face but which, in context, convey a racial meaning.47 The credibility of thewitness(es) attesting to discriminatory statements, and the credibility of thewitness(es) denying them, are critical to determining whether such statementsactually were made. If racially discriminatory statements were made, theirimportance will depend on their egregiousness and how closely they relate – in time

48 See subsection 15-VII.A. for a discussion of harassment.

49 See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“Congress never intended to give

an employer license to discriminate against some [persons of a certain race] merely because he favorably

treats other members of the employees’ group.”); cf. Sinai v. New England Telephone & Telegraph Co, 3 F.3d

471, 474 (1st Cir. 1993) (in a Section 1981 case: “The relevant issue in a discrimination claim is whether the

defendant discriminates against the plaintiff on an improper basis. The fact that the defendant hired other

members of the protected class is evidence that the jury can consider in reaching the ultimate issue, but is not

dispositive in itself. The jury must weigh all of the evidence.”).

50 For example, if an employee alleges that his race was a reason he was discharged or

disciplined for misconduct, similarly situated employees should be identified who engaged in misconduct of

comparable seriousness. See McDonnell Douglas, 411 U.S. at 804 (Court stated that Black employee who

was terminated and refused rehire because of alleged misconduct should be given a fair opportunity to show

that the reason was pretextual, and “[e]specially relevant to such a showing would be evidence that white

employees involved in acts . . . of comparable seriousness . . . were nevertheless retained or rehired”).

51 Some courts engage in an analysis of “similarly situated” that is unduly restrictive. See,

e.g.,Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (requiring plaintiff to show that all relevant aspects

of her employment situation were “nearly identical” to those of her comparator). See generally Ernest F.

Lidge III, The Courts’ Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 Mo.

L. Rev. 831, 863-82 (2002).

15-14

and content – to the decision in question. For example, a statement that there are“too many Asians” in a department, made by a hiring official when discussingapplicants, would be strong evidence supporting an Asian American’s failure-to-hireclaim. Such a statement also would support a claim of hostile work environment byAsian American employees.48

! Comparative treatment evidence. This is evidence as to whether the claimant wastreated the same as, or differently than, similarly situated persons of a different race.Such evidence is not always required, but a difference in the treatment of similarlysituated persons of different races is probative of discrimination because it tends toshow that the treatment was not based on a nondiscriminatory reason. Conversely,an employer’s consistent treatment of similarly situated persons of different racestends to support its contention that no discrimination occurred. Comparator evidencethat supports either party’s position must be weighed in light of all thecircumstances. For example, if the group of similarly situated persons who weretreated better than the claimant included persons of the claimant’s race, that wouldweaken his or her claim, but it would not be conclusive proof of nondiscriminationbecause the balance of the evidence overall might still more convincingly point todiscrimination.49 Identification of persons who are similarly situated to the claimantshould be based on the nature of the allegations, the alleged nondiscriminatoryreasons, and other important factors suggested by the context,50 but should not bebased on unduly restrictive standards.51

52 See, e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (prior

discriminatory acts may be used as background evidence to support a claim); Aman , 85 F.3d at 1083 (“A play

cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a

discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”) (citation

and quotation marks omitted).

53 See, e.g., United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713 n.2 (1983)

(background evidence that person responsible for promotion decisions made derogatory remarks about Blacks

in general and Plaintiff in particular was relevant to Plaintiff’s failure to promote claim); Robinson v. Runyon,

149 F.3d 507, 512-13 (6th Cir. 1998) (evidence that coworkers circulated fake employment application

incorporating racial stereotypes of African-Americans, and that supervisors laughed upon reading the

document, was relevant to African American employee’s discriminatory discharge claim).

54 See subsection 15-VII.A. for a discussion of harassment.

55 See United States v. Crosby, 59 F.3d 1133, 1135 n. 4 (11th Cir.1995) (although a Title VII

violation may occur even where a supervisor or decisionmaker is of the same race as the alleged victim, there

was no evidence here that the Black supervisor held members of his own race to a higher standard of conduct

than members of another race) (citing Billingsley v. Jefferson County , 953 F.2d 1351, 1353 (11th Cir.1992)

(Title VII cause of action even where decision-maker and employee are of the same race)). Same-race

harassment also violates Title VII. See infra note 122.

15-15

! Relevant background facts. Specific employment decisions and issues should notbe looked at in isolation. Other information that can shed light on whether theemployer’s adverse employment decision was motivated by race includes theemployer’s treatment of other employees (or customers, etc.), race-related attitudes,the work environment generally, and the context of the challenged employmentdecision.52 For example, background evidence that an employer has permitted racialjokes and slurs about Asian Americans in the workplace would support an AsianAmerican employee’s allegation that her termination was based on her race.53

Similarly, background evidence that an employer has discriminated against AfricanAmericans in hiring, pay, or promotions would support an African Americanemployee’s claim that a pattern of mistreatment – e.g., her supervisor underminingher work, ostracizing her, and making snide comments – is actually a pattern of race-based harassment.54 The point is that background evidence can help determine theemployer’s state of mind and otherwise provide important context. Also, assuggested by the above examples, the inquiry into background evidence can revealother potential violations of the statute.

! Relevant personnel policies. An employer’s deviation from an applicable personnelpolicy, or a past practice, can support an inference of a discriminatory motive.Conversely, acting in conformance with a consistently applied nondiscriminatorypolicy or practice would suggest there is no such motive.

! The decisionmaker’s race. The race of the decisionmaker may be relevant, but isnot controlling.55 In other words, it should not be presumed that a person would not

56 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Castaneda v.

Partida, 430 U.S. 482, 499 (1977)).

57 See McDonnell Douglas, 411 U.S. at 804-05 (statistical evidence showing an employer’s

general policy or practice is relevant to whether individual employment decision was discriminatory); Bell

v. E.P.A., 232 F.3d 546, 553-54 (7th Cir. 2000) (stating statistical evidence may be “relevant to and probative

of the issue of pretext even when it is insufficient to support a pattern and practice disparate treatment case”

and “the evidence that blacks are not promoted as often as nonblacks, even though not statistically significant,

is still circumstantial evidence of possible discrimination”).

58 See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (1978) (while “[a] racially

balanced work force cannot immunize an employer from liability for specific acts of discrimination, . . .

[p]roof that [the employer’s] workforce was racially balanced or that it contained a disproportionately high

percentage of minority employees is not wholly irrelevant”).

59 See Reeves, 530 U.S. at 147 (“Proof that the defendant’s explanation is unworthy of credence

is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be

quite persuasive. Proving the employer’s reason false becomes part of (and often considerably assists) the

greater enterprise of proving that the real reason was intentional discrimination. In appropriate circumstances,

the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to

cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law

15-16

discriminate against members of his own race. As the Supreme Court has noted,“[b]ecause of the many facets of human motivation, it would be unwise to presumeas a matter of law that human beings of one definable group will not discriminateagainst other members of their group.”56

! Statistical evidence. Statistics reflecting the employer’s general policy or practicecan be helpful in determining whether race was a factor in a particular selectiondecision. For example, a Black applicant’s allegation of hiring discrimination wouldbe bolstered by evidence that the selection rate of qualified Black applicants issignificantly below the selection rate of qualified applicants of other races, or thatBlacks are significantly under-represented in the employer’s workplace given theiravailability in the qualified labor market.57 Conversely, while a racially diverseworkforce cannot immunize an employer from liability for specific acts ofdiscrimination, the more racially diverse the relevant part of the employer’sworkforce is, the less credible would be the claim of discrimination.58 Statisticalevidence also is important in determining whether the employer has a systemicpattern or practice of discriminating (see § 15-V.A.3.).

Employer Credibility

The credibility of the employer’s explanation is key and must be judged in light of all theevidence obtained during the investigation. If an employer’s explanation for the employee’streatment ultimately is not credible, that is powerful evidence that discrimination is the most likelyexplanation.59 An employer’s credibility will be undermined if its explanation is unsupported by

that the factfinder is entitled to consider a party’s dishonesty about a material fact as affirmative evidence of

guilt.”) (citations and internal quotation marks omitted).

60 Employers have leeway to make subjective decisions, but regardless of whether the reasons

are objective or subjective, the employer’s “explanation of its legitimate reasons must be clear and reasonably

specific” so that “the plaintiff is afforded a ‘full and fair opportunity’ to demonstrate pretext.” See Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). The explanation must be clearly set forth

through the presentation of evidence. Id. at 255. A person evaluating a decision based on subjective factors

should do so carefully because subjective factors “are more susceptible of abuse and more likely to mask

pretext.” See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 320 (3d Cir. 2000) (citation and

quotation marks omitted).

61 See, e.g., Burdine, 450 U.S. at 259 (Title VII “was not intended to ‘diminish traditional

management prerogatives.’ . . . The fact that a court may think that the employer misjudged the

qualifications of the applicants does not in itself expose him to Title VII liability, although this may be

probative of whether the employer’s reasons are pretexts for discrimination”) (citations omitted).

15-17

or contrary to the balance of the facts. Similarly, the credibility of the explanation can be called intoquestion if it is unduly vague,60 appears to be an after-the-fact explanation, or appears otherwisefabricated (e.g., the explanation shifts, or inconsistent reasons are given).

Of course, even if the employer’s explanation lacks credibility, discrimination will not befound if the evidence affirmatively demonstrates that the employer’s real motivation was not raceor another protected EEO trait, but something not covered by the laws enforced by EEOC – forexample, an employee’s blowing the whistle to the SEC about violations of securities laws. Also,an employer’s business decision cannot be found discriminatory simply because it appears that theemployer acted unwisely, or that the employer’s decision was in error or a misjudgment. At thesame time, the reasonableness of the employer’s explanation is an important part of the overallpicture.61 The investigator must look at the totality of the evidence to determine if there is reasonto believe the employer acted in a racially motivated manner.

EXAMPLE 7EMPLOYER EXPLANATION CREDIBLE

Alex, of Hispanic descent, has been progressively promoted and nowholds a mid-level management position in a public relations firm inwhich he is responsible for several important accounts. The clientsand the employer are happy with his performance. A senior-levelmanagement position that involves more responsibility opens up.The employer desires someone with demonstrated creativity to fill it.Alex applies for the job, but is not selected. Instead, the employerchooses Jennifer, a White female who, while qualified, has slightlyless seniority and relevant experience. Alex files a charge allegingrace and/or national origin discrimination. The investigation revealsthat while Jennifer has somewhat less experience than Alex, she hasdisplayed more creativity than Alex by developing a new way toreach the youth market, consistently suggesting improvements on the

62 In Ash v. Tyson Foods, the Supreme Court declined to articulate a standard for inferring

pretext from superior qualifications, but the Court rejected the Eleventh Circuit’s formulation – that “the

disparity in qualifications [must be] so apparent as virtually to jump off the page and slap you in the face” – as

unhelpful, imprecise, and unlikely to yield consistent results in the courts. See Ash v. Tyson Foods, Inc., No.

05-379, 2006 W L 386343, at *2 (U.S. Feb. 21, 2006) (per curiam).

63 See Goosby, 228 F.3d at 320-21 (summary judgment for employer inappropriate because

sufficient evidence existed for a jury to find discrimination; even though the employer contended that the

decision was based on Plaintiff’s score on a competency-assessment tool called “the Matrix” that was

purported to be objective, its criteria and their weighting actually were highly subjective and decisions based

on the Matrix were inconsistent in that Plaintiff pointed out that her supervisor did not follow the Matrix with

respect to certain Whites); Bell , 232 F.3d at 554 (reversing summary judgment for employer because

Plaintiffs’ comparative qualifications, coupled with statistical evidence, were sufficient to support the

conclusion that the employer’s stated reason that it promoted the best persons was pretextual).

15-18

design of marketing materials, and implementing a new system forquickly disseminating time-sensitive documents. Alex, on the otherhand, is seen as competent, hard working, and professional, but notas someone who displays quite as much creativity as wanted for thenew job. There is clear and reasonably specific evidence verifyingthe perceived difference between Alex’s and Jennifer’s creativity.There is no evidence of discrimination other than comparativequalifications. The relatively minor differences in the employees’qualifications, alone, do not warrant a conclusion that Alex’snonpromotion was motivated by race or national origin.62

EXAMPLE 8EMPLOYER EXPLANATION NOT CREDIBLE

To change Example 7, if Alex outshone Jennifer in the otherperformance categories important for the promotion, such ascustomer relations, and leadership skills, the employer’s stated reason– that it chose the most qualified person – would lack credibility andit would be reasonable to suspect that Alex’s race/national originmotivated the employer. Similarly, if there was any evidencesupporting Alex’s case other than relative qualifications – e.g.,derogatory statements about the leadership potential of Hispanics,shifting explanations, a pattern of not promoting Hispanics, orinconsistency suggesting bias against Hispanics in measuringcreativity – the totality of the evidence could lead one to concludethat Alex’s race/national origin likely motivated the employer.63

64 Teamsters v. United States, 431 U.S. 324, 336 (1977). “Absent explanation, it is ordinarily

to be expected that nondiscriminatory hiring practices will in time result in a work force more or less

representative of the racial and ethnic composition of the population from which employees are hired,” and

statistics showing a stark imbalance are often a “telltale sign” of discrimination. Id. at 339 n.20. At the same

time, Title VII does not require an employer’s workforce to be racially balanced. See 42 U.S.C. § 2000e-2(j)

(Title VII does not require race-based hiring simply because there is a racial imbalance between the

employer’s workforce and the community).

65 This example is based on the facts in EEOC v. O&G Spring and Wire Forms Specialty Co.,

38 F.3d 872, 876-78 & n.8 (7th Cir. 1994) (company engaged in pattern or practice of race discrimination).

66 For example, in a pattern-or-practice case involving alleged hiring discrimination against

Blacks, the analysis could measure the difference between the percentage of qualified Black applicants

selected and the percentage of qualified non-Black applicants selected. If applicant flow data are unreliable,

or are difficult or impossible to obtain, the analysis could measure the difference between the percentage of

Blacks in the job(s) at issue and the percentage of Blacks in the relevant geographical area working in

comparable positions. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 311 n.13 (1977). See also

Bazemore v. Friday, 478 U.S. 385, 400 (1986) (regression analysis that accounted for major relevant factors

– here, job title, education, tenure – was admissible; failure of analysis to include “all measurable variables”

went not to admissibility, but to probative value). The probative value of statistics also may be affected by

the size of the at-issue pool (i.e., sample size). See Teamsters, 431 U.S. at 339 n.20.

67 See Hazelwood, 433 U.S. at 311 n.17 (“a fluctuation of more than two or three standard

deviations would undercut the hypothesis that decisions were being made randomly with respect to race,”

though “not intend[ing] to suggest that precise calculations of statistical significance are necessary in

employing statistical proof”). When statistics are not being relied upon as the core of a pattern-or-practice

case, but as circumstantial evidence in an individual case, the statistics need not be as finely tuned, nor is

statistical significance required. See supra note 57 and accompanying text.

15-19

3. Recognizing “Pattern or Practice” Race Discrimination

A systemic “pattern or practice” of intentional discrimination involves statistical and/or otherevidence that demonstrates that discrimination is “standard operating procedure – the regular ratherthan the unusual practice.”64 For example, a pattern or practice would be established if, despite thefact that Blacks made up 20 percent of a company’s applicants for manufacturing jobs and 22percent of the available manufacturing workers, not one of the 87 jobs filled during a six year periodwent to a Black applicant.65

To the extent possible, the statistical analysis must include nondiscriminatory factors thatreasonably might be said to account for any disparity. In a hiring case, for example, relevant factorswould include the racial makeup and qualifications (e.g., education and experience relevant to thejob) of the applicants, or of the general labor market if applicant data are unreliable or difficult toobtain.66 The disparity also should be “statistically significant,” meaning unlikely to have occurredby chance.67 Other instances and evidence of discrimination should be examined in conjunction

68 See, e.g., Teamsters, 431 U.S. at 339-40 (anecdotal evidence of discrimination experienced

by specific individuals brings the “cold numbers convincingly to life,” and the usefulness of statistics depends

on all of the surrounding facts and circumstances); Bazemore, 478 U.S. at 400 (probative value of statistics

will “depend in a given case on the factual context of each case in light of all the evidence”).

69 See Hazelwood, 433 U.S. at 307-08 (“Where gross statistical disparities can be shown, they

alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”);

Teamsters, 431 U.S. at 341 n.23 (“In any event, fine tuning of the statistics could not have obscured the

glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut

the inference of discrimination came not from a misuse of statistics but from ‘the inexorable zero.’”); cf.

United States v. City of Warren, 138 F.3d 1083, 1094 (6th Cir. 1998) (in disparate impact case: “The fact that

as of 1986, when both the durational residency requirement and the challenged recruiting practices were

intact, the City of Warren employed not a single black person out of a workforce of 1500 certainly

demonstrates a grossly discriminatory impact. Statistical analysis is unnecessary to establish this point.”).

70 Investigators generally should contact the Research and Technical Information division of

the Office of Research, Information and Planning (ORIP) with questions during an investigation. The Office

of General Counsel’s Research and Analytical Services (RAS) unit also is an available resource for

investigators and attorneys.

71 See 42 U.S.C. § 2000e-2(k) (disparate impact provision of Title VII); 29 C.F.R. Part 1607

(Uniform Guidelines on Employee Selection Procedures); Griggs v. Duke Power Co., 401 U.S. 424 (1971).

72 Griggs, 401 U.S. at 431.

73 Id. at 432.

15-20

with the statistics.68 If the statistical disparity is gross, it alone can establish a pattern or practiceclaim, such as when there is an “inexorable zero.”69 In all cases, the employer’s explanation orrebuttal (which may be statistical, nonstatistical, or both) should be fully analyzed and weighedagainst the evidence supporting the claim. EEOC staff should contact headquarters experts forassistance in statistical cases.70

B. RACIAL DISPARATE IMPACT

A finding of discrimination in the form of disparate impact does not depend on the existenceof an unlawful motive.71 Disparate impact analysis is aimed at removing barriers to EEO that arenot necessarily intended or designed to discriminate – “practices that are fair in form, butdiscriminatory in operation”72 in that they operate as “built-in headwinds for [a protected class] andare unrelated to measuring job capability.”73

74 The disparate impact exemption for bona fide seniority systems and certain other bona fide

systems is in section 703(h) of Title VII. See 42 U.S.C. § 2000e-2(h); Teamsters, 431 U.S. at 353-54. Title

VII also exempts from disparate impact challenge rules barring the employment of individuals who currently

and knowingly use or possess a controlled substance, unless the use or possession is under the supervision

of a licensed health care professional or otherwise authorized by Federal law. See 42 U.S.C. § 2000e-2(k)(3).

75 See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988) (“If an employer’s

undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by

impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against

discriminatory actions should not apply.”).

76 See 42 U.S.C. § 2000e-2(k)(1)(B)(i).

77 See 42 U.S.C. § 2000e-2(k)(1)(A)(i). If a policy or practice used at a certain point of the

selection process has a discriminatory impact, the employer must justify the discriminatory policy or practice

even if later stages of the selection process eliminate the disparate impact when looking at the selection

process as a whole. See Teal, 457 U.S. at 453-55.

15-21

The statute exempts certain policies or practices from disparate impact challenges – mostnotably, seniority systems.74 Otherwise, however, the disparate impact approach applies to all typesof employment criteria, whether objective or subjective,75 including:

! recruitment practices

! hiring or promotion criteria

! layoff or termination criteria

! appearance or grooming standards

! education requirements

! experience requirements

! employment tests

Proving unlawful disparate impact under Title VII first requires a statistical demonstrationthat the employer has an employment policy or practice that causes a significant disparate impactbased on race (or another protected trait). The particular policy or practice causing the impact mustbe identified, unless the elements of the employer’s decision-making process cannot be separatedfor analysis, in which case the decision-making process can be analyzed as one employmentpractice.76

Once a policy or practice has been proven to cause a significant impact, the employer hasthe burden of demonstrating that the policy or practice is job related for the position in question andconsistent with business necessity.77 If the employer satisfies this burden, the case focuses on

78 See 42 U.S.C. §§ 2000e-2(k)(1)(A)(ii) & (k)(1)(C).

79 See Bradley v. Pizzaco of Nebraska, 7 F.3d 797, 798-99 (8th Cir. 1993) (granting EEOC an

injunction against a pizza restaurant because burden of a narrow exception for Black men with PFB was

minimal and the restaurant “failed to prove a compelling need for the strict no-beard policy as applied to those

afflicted with PFB and has failed to present any evidence suggesting that the current policy is without

workable alternatives or that it has a manifest relationship to the employment in question”). The analysis of

job-relatedness and business necessity is fact specific – there are no absolutes. For example, a no-beard

policy could be legal in a situation in which beards were shown to interfere with safely using a respirator and

no viable alternative existed under the circumstances. See 29 C.F.R. § 1910.134(g)(1)(i) (OSHA respirator

standard); Interpretation Letter from John L. Henshaw, Assistant Secretary of Labor for OSHA, to Senator

Carl Levin (Mar. 7, 2003) (while employers “cannot permit respirators with tight-fitting facepieces to be worn

by employees who have facial hair that comes between the sealing surface of the facepiece and the face, or

that interferes with valve function,” the problem sometimes can be solved by trimming the beard, and “[s]ome

types of respirators do not require a face seal and can usually be worn by bearded employees. . . . All

respirators must be selected based on the respiratory hazard to which the worker is exposed. The employer

must also consider user factors that affect performance and reliability.”), available at http://www.osha.gov/.

80 See 42 U.S.C. §§ 2000e-2(a)(1), (a)(2).

15-22

whether the person challenging the policy or practice can demonstrate that a less discriminatoryalternative exists that meets the business need and whether the employer refuses to adopt it.78

EXAMPLE 9NO-BEARD POLICY

A pizza delivery restaurant has an inflexible no-beard policy. Therestaurant fires Jamal, one of its African American drivers, for failingto remain clean shaven. Jamal has a severe case of pseudofolliculitisbarbae (“PFB”), an inflammatory skin condition that occurs primarilyin Black men and that is caused by shaving. The severity of thecondition varies, but many of those who suffer from PFB effectivelycannot shave at all. If Jamal or EEOC were to challenge the no-beardpolicy as unlawful because it has a significant negative impact onBlacks, the employer would have to prove the policy is job-relatedand consistent with business necessity.79 See also § 15-VII.B.5.

15-VI EQUAL ACCESS TO JOBS

A. RECRUITING

Who ultimately receives employment opportunities is highly dependent on how and wherethe employer looks for candidates. Accordingly, Title VII forbids not only recruitment practices thatpurposefully discriminate on the basis of race but also practices that disproportionately limitemployment opportunities based on race and are not related to job requirements or business needs.80

For example, recruiting from racially segregated sources, such as certain neighborhoods, schools,

81 See 42 U.S.C. § 2000e-3(b) (unlawful for entities covered by Title VII to print or publish

or cause to be printed or published any notice or advertisement indicating any preference, limitation,

specification, or discrimination based on race, color, religion, sex, or national origin, except when religion,

sex, or national origin is a BFOQ (race and color can never be BFOQs)).

82 See 42 U.S.C. § 2000e-2(b) (unlawful for employment agencies to discriminate); 42 U.S.C.

§ 2000e(c) (defining “employment agency”).

83 See Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by

Temporary Employment Agencies and Other Staffing Firms, at Question 7 (Dec. 1997), available at

http://www.eeoc.gov/policy/docs/conting.html.

84 Investigative staff should contact their legal units when investigating potential disparate

impact of word-of-mouth recruiting, nepotism, and the like. Compare Thomas v. Washington County Sch.

Bd., 915 F.2d 922, 924-26 (4th Cir. 1990) (affirming disparate impact ruling where employer’s “practices of

nepotism and word-of-mouth hiring kept [African Americans] unaware of job openings”), with EEOC v.

Chicago Miniature Lamp Works, Inc., 947 F.2d 292 (7th Cir. 1991) (passive reliance on employee referrals

by accepting applicants who learned of jobs through current employees could be basis of pattern or practice

disparate treatment claim, but disparate impact claim not allowed because, without an affirmative act by the

employer, such a claim would in essence be a “bottom-line” attack on employer’s workforce statistics).

85 See EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594 (1st Cir. 1995) (affirming

lower court ruling that union’s “membership sponsorship policy” had unlawful disparate impact on Blacks);

cf. Teamsters, 431 U.S. at 349 n.32 (describing how neutral practices can unlawfully perpetuate the effect of

discrimination: “Local 53 Asbestos Workers v. Vogler . . . provides an apt illustration: There a union had a

policy of excluding persons not related to present members by blood or marriage. When in 1966 suit was

brought to change this policy, all of the union’s members were white, largely as a result of pre-Act intentional

[racial] discrimination. The court observed: ‘While the nepotism requirement is applicable to black and white

15-23

religious institutions, and social networks, leads to hiring that simply replicates societal patterns ofracial segregation.

1. Job Advertisements and Employment Agencies

Title VII specifically forbids job advertisements based on race, color, and other protectedtraits.81 The statute also prohibits discrimination by employment agencies.82 If an employer asksan employee-referral agency or search firm not to refer or search for candidates of a particular race,both the employer that made the request and the employment agency that honored it would beliable.83

2. Word-of-Mouth Referrals

While word-of-mouth recruiting in a racially diverse workforce can be an effective way topromote diversity, the same method of recruiting in a non-diverse workforce is a barrier to equalemployment opportunity if it does not create applicant pools that reflect the diversity in the qualifiedlabor market.84 Similarly, unions that are not racially diverse should avoid relying solely on memberreferrals as the source of new members.85

alike and is not on its face discriminatory, in a completely white union the present effect of its continued

application is to forever deny to [Blacks] and M exican-Americans any real opportunity for membership’”).

86 Compare United States v. City of Warren, MI, 138 F.3d 1083, 1094 (6th Cir. 1998) (on

similar facts, holding Department of Justice established that municipality’s recruiting practices had a disparate

impact on Black potential job applicants in violation of Title VII: “Warren’s limitation of its applicant pool

to residents of the overwhelmingly white city, combined with its refusal to publicize jobs outside the racially

homogenous county, produced a de facto barrier between employment opportunities and members of a

protected class. A plaintiff need not identify a sign reading ‘No Blacks Need Apply’ before invoking Title

VII.”), and NAACP v. Town of Harrison, NJ, 940 F.2d 792, 799-805 (3d Cir. 1991) (affirming lower court’s

finding that requirement that town employees become residents within one year of hire had unlawful disparate

impact on Blacks; town’s population was 0.2 percent Black and town had never hired a Black person, though

the metropolitan area was home to over 214,000 Blacks, and Blacks made up 22 percent of town’s private

sector workforce), with NAACP v. City of Bayonne, NJ, 134 F.3d 113, 123-25 (3d Cir. 1998) (upholding

finding that the plaintiff did not prove that residency requirement caused disparate impact – statistical

evidence was not strong, and city showed that its four-year moratorium on the residency requirement did not

raise the number of Black employees).

15-24

3. Homogeneous Recruitment Sources

Title VII is violated by recruiting persons only from largely homogeneous sources if therecruitment practice has a racial purpose, or if it has a significant racial impact and cannot bejustified as job related and consistent with business necessity. For example, Title VII might beviolated if a municipal employer with an overwhelmingly White population and workforce abutsa major city with an overwhelmingly Black population, but the municipality only hires its ownresidents and refuses to advertise its jobs in newspapers that circulate in the abutting major city.86

As another example, Title VII might be violated if a statistically significant racial disparity resultsfrom recruiting persons exclusively from predominantly White schools, or exclusively frompredominantly Black schools, when it would be feasible to recruit qualified students from a rangeof sources. More investigation would be needed to determine whether a racial motivation exists,or whether the employer’s recruitment practices can be justified as job related and consistent withbusiness necessity.

4. Discriminatory Screening of Recruits

The process of screening or culling recruits presents another opportunity for discrimination.Race obviously cannot be used as a screening criterion. Nor may employers use a screeningcriterion that has a significantly disparate racial impact unless it is proven to be job related andconsistent with business necessity.

EXAMPLE 10DISCRIMINATORY SCREENING

An executive in a large company asks a recruiter in the humanresources department to find her a new secretary. The executive tellsthe recruiter that in addition to excellent secretarial skills, she wants

15-25

only to interview candidates who will relate well with high levelexecutives inside and outside the company. In response to this, therecruiter searches the company’s résumé database. The searchproduces 50 current résumés. In order to reduce this to a moremanageable number, the recruiter refines the search to eliminaterésumés from zip codes that are predominantly Black or Latino. Thisviolates Title VII.

B. HIRING AND PROMOTION

The law generally leaves it to the employer’s business judgment to determine who shouldbe hired or promoted. Within that context, however, an applicant’s race should not affect his or herchances. This means that employers cannot treat persons of different races differently in the hiringor promotion process. Nor may employers use selection criteria that have a significantdiscriminatory effect without being able to prove that the criteria are job-related and consistent withbusiness necessity. Thus, a sound way for employers both to achieve business goals and to complywith the law is to hire and promote based on job-related ability, as measured by uniform andconsistently applied qualification/selection standards.

1. Uniform and Consistently Applied Standards

When making hiring and promotion decisions, employers must apply the same selectioncriteria to persons of different races, and apply them in the same way, giving the same weight toeach criterion for each person. The reasons given for selection decisions should be credible andsupported by the evidence. The following are examples.

EXAMPLE 11NONDISCRIMINATORY SELECTION DECISION

Malcolm, an Asian American, applies for an executive position withthe employer, a health maintenance organization. Malcolm is wellqualified; he has a B.S. in biology from a large state university andan M.D. from a prestigious private university. Malcolm also hasseven years’ experience practicing internal medicine and recentlyobtained an Executive M.B.A. from a well-respected business school.The employer interviewed Malcolm and eight other candidates.Malcolm was one of two finalists brought back for a final round ofinterviews. The employer’s selection committee ultimately choseRobert, a White finalist with slightly fewer qualifications but withexperience in a similar job for a competitor. The employer tellsEEOC that given Robert’s experience, it believed it would gain themost competitive benefit by hiring him. The EEOC investigatorconfirms Robert’s experience working for a competitor, and reads theminutes of the selection committee’s final meeting which reflect thatthis was the reason discussed at the meeting for choosing Robert over

87 See supra note 60.

15-26

Malcolm. Here, the evidence supports the employer’s legitimate,nondiscriminatory reason.

EXAMPLE 12DISCRIMINATORY SELECTION DECISION

Kai, a Native American, files a charge after he applied for apromotion, was interviewed, and was not selected. The investigationreveals that, based on objective qualifications, Kai was deemed oneof the top candidates but the job ended up going to Ted, a similarlyqualified White candidate from outside the company. The hiringmanager tells the investigator that he thought that Kai was wellqualified but he chose Ted because he “seemed to be a better fit; I’mcomfortable with him and I can see him in my job one day.” Whenpressed to be more specific,87 the manager says he liked the fact thatTed worked for a competitor. However, the investigation reveals thatalthough Ted did work for another company in the industry, it wasnot really a competitor. Employee and management witnesses tellthe investigator that Ted’s experience working for another companyin the industry was no more valuable than Kai’s experience workingfor the company itself. The witnesses also tell the investigator that,until now, the company practice had been to prefer qualified internalcandidates over similarly qualified external candidates. There isreasonable cause to believe that Kai was discriminated against basedon his race or national origin.

EXAMPLE 13DISCRIMINATORY SELECTION DECISION

Rita, an African American, has worked seven years as a ProgramAnalyst for a federal agency. She consistently has receivedoutstanding performance evaluations. Each of the last four years,Rita has applied for openings for jobs in her office in a higher grade.The agency has rejected Rita each time. After the fourth rejection,Rita initiated EEO counseling, and then a formal complaint, becauseshe believed she had been repeatedly discriminated against. Shestated that four White employees were promoted over her, each timefor a different reason. The investigation reveals that the agencyactually did apply the same promotion criteria during each selection.Importantly, however, witness interviews and documentary evidence(e.g., the employer’s interview notes) strongly suggest that theagency weighted the criteria differently each time so that Rita was theleast qualified applicant. In other words, it appears that when a job-related qualification favored Rita it was deemed less important than

88 Griggs, 401 U.S. at 433.

89 Id.

15-27

when a qualification favored a White candidate. Moreover, statisticsreveal that Whites are promoted more often than similarly qualifiedAfrican Americans. There is reasonable cause to believe Rita wasdiscriminated against based on her race.

2. Job-Related Standards, Consistent with Business Necessity

In an employer’s important effort to hire the best candidate, it might unintentionally engagein race discrimination by using selection standards that measure differences between racial groupsthat are not related to the job. Title VII provides that, if a selection standard is shown to have asignificant impact based on race, the employer must demonstrate that the standard is job-related andconsistent with business necessity. Thus, employers should be sure to “measure the person for thejob and not the person in the abstract.”88

Education Requirements

Educational requirements obviously may be important for certain jobs. For example,graduation from medical school is required to practice medicine. However, employers often imposeeducational requirements out of their own sense of desirable qualifications. Such requirements mayrun afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.As the Supreme Court stated in one of its earliest interpretations of Title VII: “History is filled withexamples of men and women who rendered highly effective performance without the conventionalbadges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests areuseful servants, but Congress has mandated the commonsense proposition that they are not tobecome masters of reality.”89

EXAMPLE 14EDUCATION REQUIREMENT

Chloe, White, is the Head Secretary for a division of XYZ Corp. Shetook the job right after college and now is departing after three yearsto go to graduate school. The employer was thrilled with Chloe’swork, and when it gets notice that she is leaving, it sets out to find areplacement. Sylvia, an African American, applies for the job.Sylvia is a successful graduate of the local business institute, and hasspent the last five years working as a secretary for a regional bank,rising a year ago to become the Executive Secretary in one of itsmajor departments. The employer rejects Sylvia’s applicationbecause she is not a college graduate, which triggers a charge.Statistical evidence shows that in the local labor market AfricanAmericans and Hispanics in the pool of administrative and clerical

90 See 42 U.S.C. § 2000e-2(h).

91 See 29 C.F.R. Part 1607 (UGESP); Griggs, 401 U.S. at 436 (“From the sum of the legislative

history relevant in this case, the conclusion is inescapable that the EEOC’s construction of §703(h) to require

that employment tests be job-related comports with Congressional intent.”).

92 See 29 C.F.R. § 1607.3A (“The use of any selection procedure which has an adverse impact

on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or

ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the

procedure has been validated in accordance with these guidelines, or the provisions of section 6 below are

satisfied.”).

15-28

workers are significantly less likely to have college degrees thanWhites. The employer defends its education requirement byattributing Chloe’s success to the fact that she was college educated,noting that the Head Secretary position involves not only traditionalsecretarial work, but also more complex responsibilities such aspreparing reports, and training and supervising other clerical staff.The investigation reveals, however, that none of the firm’s priorsuccessful Head Secretaries had college degrees, and it is not theindustry standard. Most importantly, the employer presents noevidence that a college degree is more predictive of, or correlatedwith, job performance than a degree from a business institute plussignificant relevant experience (i.e., Sylvia’s qualifications), or othercredentials and experiences that would render a person qualified forthe job. The evidence establishes that the employer has violated TitleVII because the college-degree requirement screens out AfricanAmericans and Hispanics to a significant degree but it has not beendemonstrated to be job related and consistent with business necessity.

Employment Testing

Employment testing is another practice to which the disparate impact principle frequentlyis applied. Title VII provides that it is not an unlawful employment practice for an employer to giveand to act upon the results of any professionally developed ability test “provided that such test, itsadministration or action upon the results is not designed, intended or used to discriminate on thebasis of race” or other protected bases.90 Under this provision, employment tests that have adisparate impact based on race or another protected trait must be validated pursuant to thegovernment’s Uniform Guidelines on Employee Selection Procedures.91 For example, if anemployer decides to use a personality test to determine which employees are “managementmaterial,” and the test has a significant disparate impact based on race or another protected trait, theemployer first must have the test professionally validated to ensure that the test is predictive of, orsignificantly correlates with, important elements of a manager’s job performance.92 Even if theemployer meets that standard, the test still may violate Title VII if there is another, less

93 See 42 U.S.C. § 2000e-2(k)(1)(A).

94 See 42 U.S.C. § 2000e-2(l).

95 See Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 655-56 (7th Cir. 2001)

(rather than using a straight ranking system to measure and compare test scores on a promotional exam, the

fire department banded similar scores together; court stated that the banding was designed to simplify scoring

and remove meaningless gradations, not for the unlawful purpose of making the scores of any particular race

seem higher).

96 A 2003 study suggests this is a significant problem. See Devah Pager, The Mark of a

Criminal Record , AMERICAN JOURNAL OF SOCIOLOGY (Mar. 2003) (audit study sending matched pairs of

Black and White male college students with similar self-presentation styles to apply for 350 low-skilled jobs

advertised in the Milwaukee classifieds; purpose was to test the degree to which a criminal record affects

subsequent employment opportunities; study found that when the White “testers” were assigned a fake 18-

month prison record – for possession of cocaine with intent to sell – they were called back by employers 17%

of the time, while the Black testers assigned the same record were called back only 5% of the time; Whites

without a criminal record had a 34% call back rate versus a 14% call back rate for Blacks without a criminal

record), available at http://www.northwestern.edu/ipr/publications/papers/2003/pagerajs.pdf.

97 See Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1293-99 (8th Cir. 1975)

(applying Title VII disparate impact principles to employer’s “no convictions” hiring policy); Caston v.

Methodist Medical Center of Ill., 215 F. Supp. 2d 1002, 1008 (C.D. Ill. 2002) (race-based disparate impact

15-29

discriminatory alternative to the test that serves the employer’s needs and the employer fails to usethis alternative.93

Title VII also explicitly prohibits employers from race-norming employment tests, i.e,adjusting scores, using different cutoff scores, or otherwise altering the results of employment testson the basis of race or other Title VII-protected bases.94 For example, it is illegal to use different“passing” scores for different racial groups or to alter scores on employment tests in order to makethe mean score the same for each race. This does not mean an employer cannot change the way itgrades employment tests. For example, an employer may go from a straight ranking system to agrade banding system (i.e., a system that groups similar grades together) if done fornondiscriminatory purposes.95

Conviction and Arrest Records

Of course, it is unlawful to disqualify a person of one race for having a conviction or arrestrecord while not disqualifying a person of another race with a similar record. For example, anemployer cannot reject Black applicants who have conviction records when it does not rejectsimilarly situated White applicants.96

In addition to avoiding disparate treatment in rejecting persons based on conviction or arrestrecords, upon a showing of disparate impact, employers also must be able to justify such criteria asjob related and consistent with business necessity.97 This means that, with respect to conviction

claim challenging employer’s policy of not hiring former felons was cognizable under Title VII and thus

survived motion to dismiss).

98 See generally EEOC’s Policy Statement on the Issue of Conviction Records under Title VII

of the Civil Rights Act of 1964 (1987).

99 See Green, 523 F.2d at 1298-99 (striking down employer’s absolute bar of anyone ever

convicted of a crime other than a minor traffic offense: “Although the reasons [the employer] advances for

its absolute bar can serve as relevant considerations in making individual hiring decisions, they in no way

justify an absolute policy which sweeps so broadly. W e cannot conceive of any business necessity that would

automatically place every individual convicted of any offense, except a minor traffic offense, in the

permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer

from the burdens of discrimination in our society.”).

100 See Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (C.D. Cal. 1970) (judgment for Plaintiff

who challenged employer policy of not hiring anyone who had been arrested on “a number of occasions,”

where this threshold was undefined, and company had in its employ many persons who had been arrested),

aff’d, 472 F.3d 631 (9th Cir. 1972).

101 See generally EEOC’s Policy Guidance on the Consideration of Arrest Records in

Employment Decisions under Title VII of the Civil Rights Act of 1964 (1990).

102 Compare, e.g., Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975) (recognizing policy

of discharging persons who failed to pay “just debts” could be challenged, but ruling for employer because

15-30

records, the employer must show that it considered the following three factors: (1) the nature andgravity of the offense(s); (2) the time that has passed since the conviction and/or completion of thesentence; and (3) the nature of the job held or sought.98 A blanket exclusion of persons convictedof any crime thus would not be job-related and consistent with business necessity.99 Instead, theabove factors must be applied to each circumstance. Generally, employers will be able to justifytheir decision when the conduct that was the basis of the conviction is related to the position, or ifthe conduct was particularly egregious.

Arrest records are treated slightly differently. While a conviction record constitutes reliableevidence that a person engaged in the conduct alleged (i.e., convictions require proof “beyond areasonable doubt”), an arrest without a conviction does not establish that a person actually engagedin misconduct.100 Thus, when a policy or practice of rejecting applicants based on arrest recordshas a disparate impact on a protected class, the arrest records must not only be related to the job atissue, but the employer must also evaluate whether the applicant or employee actually engaged inthe misconduct. It can do this by giving the person the opportunity to explain and by makingfollow-up inquiries necessary to evaluate his/her credibility.101

Other employment policies that relate to off-the-job employee conduct also are subject tochallenge under the disparate impact approach, such as policies related to employees’ credit history.People of color have also challenged, under the disparate impact theory, employer policies ofdischarging persons whose wages have been garnished to satisfy creditors’ judgments.102

although Plaintiffs established that Blacks comprised a disproportionately large portion of the poor people

in Dallas, they did not offer statistics showing that people who do not pay their just debts tend to be poor

people), with Johnson v. Pike Corp. of America, 332 F. Supp. 490 (C .D. Cal. 1971) (approving stipulation

for judgment against defendant where garnishment policy had disparate impact on Blacks and other people

of color and was not supported by business necessity).

103 EQUAL EMPLOYMEN T OPPORTUNITY COMMISSION, “BEST” EQUAL EMPLOYMENT

OPPORTUNITY POLICIES, PROGRAMS, AND PRACTICES IN THE PRIVATE SECTOR 7 (2d ed. 1998). The complete

report is available at http://www.eeoc.gov/abouteeoc/task_reports/practice.html.

104 Cf. Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (“major American businesses have made

clear that the skills needed in today’s increasingly global marketplace can only be developed through

exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high- ranking retired

officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of

experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill

its principle mission to provide national security’”) (citations to briefs omitted).

105 Cf. Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997) (Bivens action under the

McDonnell Douglas framework: “An employer’s affirmative efforts to recruit minority and female applicants

[do] not constitute discrimination. An inclusive recruitment effort enables employers to generate the largest

pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded

from employment. This not only allows employers to obtain the best possible employees, but it is an

excellent way to avoid lawsuits.”) (citations and quotation marks omitted).

106

See EEOC Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.3(B),1607.6(A) (approving use of alternative selection procedures in order to eliminate or decrease adverse

impact).

15-31

C. DIVERSITY AND AFFIRMATIVE ACTION

In order to open the American workplace to historically excluded groups, some employersuse diversity and affirmative action programs. Diversity and affirmative action are related concepts,but the terms have different origins and legal connotations. Workforce diversity is a businessmanagement concept under which employers voluntarily promote an inclusive workplace.Employers that value diversity create a culture of respect for individual differences in order to “drawtalent and ideas from all segments of the population” and thereby potentially gain a “competitiveadvantage in the increasingly global economy.”103 Many employers have concluded that a diverseworkforce makes a company stronger, more profitable, and a better place to work,104 and theyimplement diversity initiatives for competitive reasons rather than in response to discrimination,although such initiatives may also help to avoid discrimination.

Title VII permits diversity efforts designed to open up opportunities to everyone. Forexample, if an employer notices that African Americans are not applying for jobs in the numbersthat would be expected given their availability in the labor force, the employer could adopt strategiesto expand the applicant pool of qualified African Americans such as recruiting at schools with highAfrican American enrollment.105 Similarly, an employer that is changing its hiring practices can takesteps to ensure that the practice it selects minimizes the disparate impact on any racial group.106 For

107 EEOC Guidelines on Affirmative Action, 29 C.F.R. § 1608.1(c).

108 See, e.g., Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 448-49

(1986) (Congress gave lower courts broad power under Title VII to fashion the most complete relief possible

to remedy discrimination, including the power to fashion affirmative action relief).

109 For example, federal contractors may be subject to affirmative action requirements of

Executive Order 11246, which is enforced by the Department of Labor’s Office of Federal Contract

Compliance Programs (http://www.dol.gov/esa/ofccp/index.htm) and/or the affirmative action requirements

of state and local governments. Federal executive branch agencies must have “an affirmative program of

equal employment opportunity” for all employees and applicants for employment, see 42 U.S.C. § 2000e-16

a n d 2 9 U . S . C . § 7 91 , a s s e t f o r th i n E E O C ’ s M a n a g e m e n t D i re c t iv e 7 15

(http://www.eeoc.gov/federal/md715/index.html).

110 See United Steel Workers of America v. Weber, 443 U.S. 193 (1979), and Johnson v.

Transportation Agency, 480 U.S. 616 (1987).

111 See Weber, 443 U.S. at 208 (because Blacks had long been excluded from craft unions

because of race, only 1.83% of the plant’s craft workers were Black, and thus the union and the employer

collectively bargained an affirmative action plan that reserved for Blacks 50% of the openings in an in-plant

craft training program, to be followed until the percentage of Black craftworkers in the plant was

commensurate with the percentage of Blacks in the local labor force; Supreme Court upheld the affirmative

action plan on grounds that its purposes mirrored those of Title VII, the plan did not unnecessarily trammel

the interests of W hite employees, and the plan was a temporary measure not intended to maintain a racial

balance, but intended to eliminate a racial imbalance); Sheet Metal Workers, 478 U.S. at 448 (“[t]he

availability of race-conscious affirmative relief . . . as a remedy for a violation of Title VII . . . furthers the

broad purposes underlying the statute” because “Congress enacted Title VII based on its determination that

racial minorities were subject to pervasive and systematic discrimination in employment”). See also Johnson,

480 U.S. at 632 (“manifest imbalance” does not need to reach the level of a prima facie case of

15-32

example, an employer that previously required new hires to have a college degree could change thisrequirement to allow applicants to have a college degree or two years of relevant experience in thefield. A need for diversity efforts may be prompted by a change in the population’s racialdemographics, which could reveal an underrepresentation of certain racial groups in the work forcein comparison to the current labor pool.

Affirmative action, in contrast, “means those actions appropriate to overcome the effects ofpast or present practices, policies, or other barriers to equal employment opportunity.”107

Affirmative action under Title VII may be (1) court-ordered after a finding of discrimination,108

(2) negotiated as a remedy in consent decrees and settlement agreements, or (3) conducted pursuantto government regulation.109 Also, employers may implement voluntary affirmative action plans inappropriate circumstances, such as to eliminate a manifest imbalance in a traditionally segregatedjob category.110 In examining whether such a voluntary affirmative action plan is legal under TitleVII, courts consider whether the affirmative action plan involves a quota or inflexible goal, whetherthe plan is flexible enough so that each candidate competes against all other qualified candidates,whether the plan unnecessarily trammels the interests of third parties, and whether the action istemporary, e.g., not designed to continue after the plan’s goal has been met.111

discrimination); EEOC Guidelines on Affirmative Action, 29 C.F.R. Part 1608.

112 Compare Wygant v. Jackson Board of Education, 476 U.S. 267, 273-76 (1986) (finding that

a race-based layoff provision in a collective-bargaining agreement, which was created by a public school

board and teachers union to remedy present effects of societal discrimination against minority employees and

to provide minority role models for minority students, violated the Equal Protection Clause), with Johnson,

480 U.S. at 620 n.2 & 641-42 (upholding under Title VII a public employer’s voluntary affirmative action

plan which permitted sex to be considered as a factor for promotions to positions within a traditionally

segregated job classification, and noting that, “where the issue is properly raised, public employers must

justify the adoption and implementation of a voluntary affirmative action plan under the Equal Protection

Clause”). The Johnson Court observed, in a footnote, that “[Title VII] was not intended to extend as far as

. . . the Constitution.” Johnson, 480 U.S. at 628 n.6.

113 See, e.g., Petit v. City of Chicago, 352 F.3d 1111, 1115 (7th Cir. 2003) (Chicago Police

Department had a compelling interest in diversity in police force serving large, racially and ethnically divided

metropolitan area, justifying, under Equal Protection Clause, city’s affirmative action promotions of African

American and Hispanic officers to rank of sergeant); Reynolds v. City of Chicago, 296 F.3d 524, 530-31

(7th Cir. 2002) (upholding non-remedial promotion of Hispanic officer because city proved it was warranted

by compelling public safety need for Hispanic officers in supervisory roles to sensitize other officers to

special problems related to Hispanic neighborhoods, and to promote trust in the citizens of those

neighborhoods; court recognized this as particularly compelling in light of the need for effective police work

in the age of public concern about international terrorism); Talbert v. City of Richmond, 648 F.2d 925, 931-32

(4th Cir. 1981) (holding that “the attainment of racial diversity in the top ranks of the police department was

a legitimate interest of the city” and thus promotion of City’s first Black officer to Major over White plaintiff

in a city with a 50% Black population was lawful); accord Cotter v. City of Boston, 323 F.3d 160, 172 n.10

(1st Cir. 2002) (declining to address whether meeting the operational needs of the police department are

compelling state interests but stating that Court is “sympathetic to the argument that communities place more

trust in a diverse police force and that the resulting trust reduces crime rates and improves policing”). But

see Patrolmen's Benevolent Ass'n. v. City of New York, 310 F.3d 43, 52-53 (2d Cir. 2002) (acknowledging

that “‘a law enforcement body’s need to carry out its mission effectively, with a workforce that appears

unbiased, is able to communicate with the public and is respected by the community it serves,’ may constitute

a compelling state interest,” but holding that race-based transfers of Black and Hispanic police officers to

precinct where a Black man was tortured were not lawful because “mere assertion of an ‘operational need’

to make race-conscious employment decisions does not give a police department carte blanche to dole out

work assignments based on race if no such justification is established”) (internal citation omitted).

15-33

An affirmative action plan implemented by a public sector employer is subject to both TitleVII of the Civil Rights Act of 1964 and the Equal Protection Clause of the United StatesConstitution.112 Some federal courts have held that public law enforcement agencies may satisfy theEqual Protection Clause if an “operational need” justifies the employer’s voluntary affirmativeaction efforts.113 In the higher education context, the Supreme Court decided in Grutter v. Bollingerthat attaining a diverse student body can justify considering race as a factor in specific admissionsdecisions at colleges and universities without violating the Equal Protection Clause or Title VI ofthe Civil Rights Act of 1964. The Supreme Court has not yet ruled on whether an “operationalneed” or diversity rationale could justify voluntary affirmative action efforts under Title VII, but a

114 See, e.g., Richard N. Appel, Affirmative Action in the Workplace: Forty Years Later, 22

HOFSTRA LAB. & EMP. L.J. 549, 571-74 (Spring 2005) (addressing whether Grutter diversity rationale will

justify race-conscious decisions in the private sector employment context under Title VII); Michael L.

Foreman, Kristin M. Dadey and Audrey J. Wiggins, The Continuing Relevance of Race-conscious Remedies

and Programs in Integrating the Nation's Workforce, 22 HOFSTRA LAB. & EMP. L.J. 81, 101-104 (Fall 2004)

(discussing the implications of Grutter for affirmative action plans in employment); Paul Frymer and John

D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America,

36 CONN. L. REV. 677, 693-697 (Spring 2004) (discussing the treatment of “operational need” cases involving

police under Title VII and the Equal Protection Clause); Rebecca Hanner White, Affirmative Action in the

Workplace: The Significance of Grutter, 92 KY. L.J. 263, 272-78 (2003-2004) (distinguishing affirmative

action in employment context from educational context and analyzing whether the diversity rationale in

Grutter will justify affirmative use of race for non-remedial purpose under Title VII, especially for private

employers).

115 EEOC Guidelines on Affirmative Action, 29 C.F.R. § 1608.1(c).

116 Id.

117 See, e.g., Frank v. Xerox Corp ., 347 F.3d 130, 137 (5th Cir. 2003) (a jury could consider

Xerox’s “Balanced W orkforce Initiative” (BWF), in which Xerox identified explicit, specific racial goals for

each grade and job level, to be d irect evidence of discrimination against Blacks in light of evidence that

Blacks were considered to be “over-represented” and Whites “under-represented,” and managers were

evaluated on how well they complied with the BWF; thus “a jury looking at these facts could find that Xerox

considered race in fashioning its employment policies and that because Plaintiffs were black, their

employment opportunities had been limited”); Taxman v. Board of Education of the Township of Piscataway,

91 F.3d 1547, 1557-58 (3d Cir. 1996) (holding that where Black employees were not underutilized or under-

represented, school district conducting reduction in force could not choose to retain a Black employee instead

of a White employee of equal seniority, ability, and qualifications, solely on grounds of diversity).

15-34

number of legal scholars and practitioners have debated the issue.114

The Commission encourages voluntary affirmative action and diversity efforts to improveopportunities for racial minorities in order to carry out the Congressional intent embodied in TitleVII.115 Further, the Commission believes that “persons subject to Title VII must be allowedflexibility in modifying employment systems and practices to comport with the purposes” of thestatute.116 However, employers are cautioned that very careful implementation of affirmative actionand diversity programs is recommended to avoid the potential for running afoul of the law.117 EEOCinvestigators should consult with attorneys from their legal unit on charges of discriminationinvolving affirmative action and diversity plans.

118 For a more detailed discussion of the standards for unlawful harassment, see Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999); Enforcement

Guidance on Harris v. Forklift Sys., Inc. (November 1993); Policy Guidance on Current Issues of Sexual

Harassment (Mar. 1990); 29 C.F.R. § 1604.11.

119 See Aman, 85 F.3d at 1083 (conduct need not be overtly racial in character as long as

harassment was because of race); Policy Guidance on Current Issues of Sexual Harassment, at 19 (Mar. 1990)

(harassment need not be explicitly sexual, racial, religious, etc. to give rise to Title VII liability as long as it

was because of the protected trait), available at http://www.eeoc.gov/policy/docs/currentissues.html.

120 See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (racial harassment

both directed at Plaintiff, and not specifically directed at Plaintiff but part of Plaintiff’s work environment,

could be considered); Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997) (permitting claim of

Black Plaintiff to survive summary judgment based on racially offensive incidents involving Plaintiff directly,

as well as incidents he was aware of involving other Blacks (some occurring prior to his employment) and

other minority groups). Courts might give less weight to racially offensive conduct experienced second-hand.

See Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 893 (8th Cir. 2005) (affirming summary

judgment for employer in part because racial epithets about Plaintiff were not made in his presence, which

lessened the objective hostility of his work environment); Smith v. Northeastern Ill. Univ., 388 F.3d 559, 567

(7th Cir. 2004) (“We do not mean to hold that a plaintiff can never demonstrate a hostile work environment

through second-hand comments or in situations where a plaintiff is not the intended target of the statements.

However, what Weaver personally experienced does not amount to an objectively hostile work environment.

She heard an offensive term directed at a third person once and only learned from others about other offensive

comments directed at third persons.”).

15-35

15-VII EQUAL OPPORTUNITY FOR JOB SUCCESS

A. RACIAL HARASSMENT

Failing to provide a work environment free of racial harassment is a form of discriminationunder Title VII. Liability can result from the conduct of a supervisor, coworkers, or non-employeessuch as customers or business partners over whom the employer has control.118

A hostile environment can be comprised of various types of conduct. While there is not anexhaustive list, examples include offensive jokes, slurs, epithets or name calling, physical assaultsor threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, andinterference with work performance. The conduct need not be explicitly racial in nature to violateTitle VII’s prohibition against race discrimination, but race must be a reason that the workenvironment is hostile.119 To determine if a work environment is hostile, all of the circumstancesshould be considered. Incidents of racial harassment directed at other employees in addition to thecharging party are relevant to a showing of hostile work environment.120

There are two requirements for race-based conduct to trigger potential liability for unlawfulharassment: (1) the conduct must be unwelcome; and (2) the conduct must be sufficiently severeor pervasive to alter the terms and conditions of employment in the mind of the victim and from the

121 Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).

122 See, e.g., Kang v. U. Lim America, 296 F.3d 810, 817 (9th Cir. 2002) (hostile work

environment could be found where Korean supervisor with stereotypical beliefs about the superiority of

Korean workers held Korean Plaintiff to higher standards, required him to work harder for longer hours, and

subjected Plaintiff to verbal and physical abuse when he failed to live up to supervisor’s expectations); Ross

v. Douglas County , 234 F.3d 391, 393 & 395-97 (8th Cir. 2000) (affirming verdict in favor of Black

employee whose Black supervisor subjected him to racially derogatory slurs, such as the “N-word” and

“black boy,” and referred to the employee’s wife, who was W hite, as “whitey”: “Such comments were

demeaning to Ross. They could have been made to please Johnson’s white superior or they may have been

intended to create a negative and distressing environment for Ross. Whatever the motive, we deem such

conduct discriminatory.”).

123 E.g., Vaughn v. Pool Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982) (trial court did not

err in finding for employer where plaintiff used racial slurs along with his co-employees, other employees

were subjected to the same obnoxious treatment as plaintiff, his co-workers expressed amicable feelings

towards him, and plaintiff testified at trial that he did not believe that pranks against him were racially

motivated or that he was singled out for abusive treatment).

124 See Harris, 510 U.S. at 22; Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

125 Oncale , 523 U.S. at 80-81.

126 Harris, 510 U.S. at 21 (“This standard, which we reaffirm today, takes a middle path between

making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible

psychological injury.”).

15-36

perspective of a reasonable person in the victim’s position. At this point, the harassing conduct“offends Title VII’s broad rule of workplace equality.”121

1. Unwelcome Conduct

The conduct must be unwelcome in the sense that the alleged victim did not solicit or incitethe conduct and regarded it as undesirable or offensive. When the conduct involves mistreatmentor is racially derogatory in nature, unwelcomeness usually is not an issue, even when the allegedharasser and victim are of the same race.122 Sometimes employers argue that the conduct in questionwas not unwelcome because it was playful banter, and the alleged victim was an active participant.The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact,a willing participant.123

2. Severe or Pervasive

To violate Title VII, racially abusive conduct does not have to be so egregious that it causeseconomic or psychological injury.124 At the same time, Title VII is not “a general civility code,”125

and thus conduct is not illegal just because it is uncomfortable, or inappropriate. The “severe orpervasive” standard reflects what the Supreme Court has called a “middle path” between theseextremes.126

127 See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“‘simple teasing,’ offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the

‘terms and conditions of employment’”).

128 See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999) (a sufficiently severe episode

may occur as rarely as once and still violate Title VII).

129 See Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir. 2003) (racially

hateful bathroom graffiti that amounted to death threat aimed at Plaintiff could be fairly characterized as

severe); Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) (“Indeed,

the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence. It

is impossible to appreciate the impact of the display of a noose without understanding this nation’s

opprobrious legacy of violence against African-Americans.”); cf. Jackson v. Flint Ink North Am. Corp., 379

F.3d 791, 795 (8th Cir. 2004) (in racial discrimination case involving graffiti depicting a burning cross, court

noted that because “its symbolism is potentially more hostile and intimidating than the racial slurs[,] [e]ven

a single instance of workplace graffiti, if sufficiently severe, can go a long way toward making out a Title VII

claim”), rev’d on reh’g on other grounds, 382 F.3d 869, 870 (8th Cir. 2004).

130 Cf. Spriggs, 242 F.3d at 185 (“Far more than a mere offensive utterance,” the N-word is “pure

anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment

and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n-----’

by a supervisor in the presence of his subordinates.”) (citation and quotation marks omitted).

131 In an amicus curiae brief in Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir. 1997), the

Commission argued that a Black employee provided sufficient evidence of racial harassment where he

15-37

Harassment must be analyzed on a case-by-case basis, by looking at all the circumstancesand the context. Relevant factors in evaluating whether racial harassment creates a sufficientlyhostile work environment may include any of the following (no single factor is determinative):

! The frequency of the discriminatory conduct;

! The severity of the conduct;

! Whether the conduct was physically threatening or humiliating;

! Whether it unreasonably interfered with the employee’s work performance; and

! The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa.Accordingly, unless the harassment is quite severe, a single incident or isolated incidents ofoffensive racial conduct or remarks generally do not create an abusive working environment.127 Buta single, extremely serious incident of harassment may be sufficient to constitute a Title VIIviolation, especially if the harassment is physical.128 Examples of the types of single incidents thatcan create a hostile work environment based on race include: an actual or depicted noose or burningcross (or any other manifestation of an actual or threatened racially motivated physical assault),129

a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,”130

and a racial comparison to an animal.131 Racial comments or other acts that are not sufficiently

complained to his supervisor that a picture of gorillas with his name written on it was racially offensive, and

his supervisor laughed at his complaint, refused to take the picture down, and allowed it to remain on display

for a week after his complaint. The Seventh Circuit did not reach the merits of the Commission’s argument,

finding that the plaintiff had waived his racial harassment claim by not alleging it in his complaint. Id. at

1168. One member of the panel, however, noted that “[h]ad it been properly before the district court, I agree

with the amicus brief filed by the Equal Employment Opportunity Commission that it would not have been

a proper candidate for summary judgment.” Id. at 1177 (Wood, J., concurring in part and dissenting in part).

A c o p y o f t h e C o m m i s s i o n ’ s a m i c u s c u r i a e b r i e f i s a v a i l a b l e a t

http://www.eeoc.gov/briefs/oates_v_discovery.txt. See also Spriggs, 242 F.3d at 185 (“To suggest that a

human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely

unflattering; it is degrading and humiliating in the extreme.”).

132 The character of the comments or acts is important in determining the frequency needed to

alter someone’s working conditions. See, e.g., Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th

Cir. 2002) (no magic number of offensive comments needed; unambiguous racial epithets fall on the more

severe end of the spectrum). See also Example 16 and accompanying note 135, infra.

133 Cf. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 824 (4th Cir. 2004) (Gregory, Circuit Judge,

concurring in the judgment) (“While many Southerners unquestionably embrace the [Confederate] flag, not

out of malice or continued belief in racial subordination, but out of genuine respect for their ancestors, we

must also acknowledge that some minorities and other individuals feel offended, threatened or harassed by

the symbol.”). See also discussion of “code words,” at note 47, supra.

134 See supra notes 129-131 and accompanying text.

15-38

severe standing alone may become actionable when repeated, although there is no threshold magicnumber of harassing incidents giving rise to liability.132 Moreover, investigators must be sensitiveto the possibility that comments, acts, or symbols that might seem benign to persons of theharasser’s race could nevertheless create a hostile work environment for a reasonable person in thevictim’s position.133

Below are examples designed to explain the concept of conduct sufficiently “severe orpervasive” to alter someone’s working conditions.

EXAMPLE 15SUFFICIENTLY SEVERE CONDUCT

Tim, an African American, is an employee at an auto partsmanufacturing plant. After a racially charged dispute with a Whitecoworker, the coworker told Tim: “Watch your back, boy!” The nextday, a hangman’s noose, reminiscent of those historically used forracially motivated lynchings, appeared above Tim’s locker. Giventhe violently threatening racial nature of this symbol and the context,this incident would be enough to alter Tim’s working conditions.134

135 Compare with, e.g., Manatt v. Bank of America, 339 F.3d 792 (9th Cir. 2003) (Asian

Plaintiff’s working environment was not so objectively abusive as to alter the conditions of her employment

where, over a two-and-a-half year period, harassment consisted of: two offensive and inappropriate incidents

(one in which two co-workers cruelly ridiculed Plaintiff for mispronouncing a word, and another instance in

which co-workers pulled their eyes back with their fingers in an attempt to imitate or mock the appearance

of Asians), as well as other offhand remarks by her coworkers and supervisors (Plaintiff overheard jokes in

which the phrase ‘China man’ was used, and overheard a reference to China and communism); the court noted

that the incidents occurred over a span of two-and-a-half years and that if they had occurred over a shorter

period of time or been repeated more frequently, Plaintiff “may very well have had an actionable hostile

environment claim”).

136 Compare with, e.g., Reedy, 333 F.3d at 908-09 (working environment of Plaintiff, Black, was

so objectively abusive as to alter the conditions of his employment where, over a seven-month period

coworkers called him and other Black employees “n------” on numerous occasions and threatened them with

violence, and the company allowed racial slurs, pictures, and threats to linger in the men’s bathroom).

15-39

EXAMPLE 16SUFFICIENTLY PERVASIVE CONDUCT

Miyuki, of Japanese descent, gets a job as a clerk in a large generalmerchandise store. After her first day on the job, a small group ofyoung male coworkers starts making fun of her when they see her byslanting their eyes, or performing Karate chops in the air, orintentionally mispronouncing her name. This occurs many timesduring her first month on the job. This is pervasive harassmentbecause of race and/or national origin.135

EXAMPLE 17CONDUCT NOT SUFFICIENTLY SEVERE OR PERVASIVESteven, an African American, is a librarian at a public library. Stevenapproaches his supervisor, White, with the idea of creating a sectionin the stacks devoted to books of interest particularly to AfricanAmericans, similar to those he has seen in major bookstore chains.Steven’s supervisor rejects the idea out of hand, stating that he doesnot want to create a “ghetto corner” in the library. This statementalone, while racially offensive, does not constitute severe orpervasive racial harassment, absent more frequent or egregiousincidents.136

EXAMPLE 18

SUFFICIENTLY SEVERE OR PERVASIVE CONDUCTPatrick, Caucasian, is a new employee in a company owned by anAfrican American. All of the employees in Patrick’s department,including his manager, also happen to be African American.Patrick’s manager was pressured to hire Patrick because his father isa friend of a company executive. On Patrick’s first day on the job,the manager said to him, “This is a Black company. Whiteboys like

137 See Aman , 85 F.3d at 1078-84 (reasonable jury could find two Black employees were

subjected to racially hostile environment where managers and coworkers repeatedly made coded racial

remarks, and managers required them to do menial tasks outside their job description, yelled at them, and

made their jobs more difficult by withholding necessary information, refusing to deal with them, and falsely

accusing them of misconduct).

15-40

you might get all the breaks in your world, but not here. Your daddygot you this job, but he can’t do it for you.” Although Patrick madeevery effort to prove himself, he was unable to do so because over thecourse of the next six months the manager subjected him to a patternof mistreatment. For example, the manager would assign Patrick themajority of the uninteresting and routine work, and would setartificial and unrealistic deadlines. The manager would yell atPatrick when he made a mistake due to having to rush. The manageralso frequently failed to inform Patrick of important meetings, orignored Patrick when he spoke at meetings he did attend. Once themanager asked Patrick to get him a cup of coffee – a task not part ofhis job, and which no one else ever was asked to do – and said tohim, “By the way, as you’ve probably guessed, I like my coffeeblack.” In contrast to the manager’s treatment of Patrick, themanager assigned Patrick’s coworkers – all African American –challenging assignments, provided them with coaching and training,and often extended their work deadlines. The totality of the evidencesupports the conclusion that Patrick suffered from race-basedharassment sufficient to alter his working conditions.137

EXAMPLE 19SUFFICIENTLY SEVERE OR PERVASIVE CONDUCT

Kyra is a newly hired programer at a computer software developmentcompany. She is the first African American, and the first woman, tobe hired by the company. All of the other employees are White orAsian American men. During her first few weeks on the job, severalemployees made insensitive comments to her. For example, one ofher coworkers told her, “You’re so articulate for a Black person.”Kyra also overheard a conversation between a group of coworkers inwhich one said, “I didn’t know Oprah could write code,” to which thegroup responded with laughter. Her team leader said to her, “I knowyou got this job because you’re a ‘twofer’ under our new affirmativeaction program, but you won’t get any breaks here.” Over her firstfew weeks, Kyra learned that the team leader held her to moreexacting standards than her newly hired White and Asian Americancounterparts. While normally each programer’s work was reviewedonce by management to look for bugs – a process the company called“code review” – the computer code Kyra wrote was put to an extraround of code review, without any evidence that it was warranted.

138 See Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, § III (June 1999). The Guidance also states the Commission’s position that even if the harasser

had no actual supervisory power over the employee, the employer will be subject to vicarious liability if the

employee reasonably believed that the harasser had such authority. But, if the harasser had no actual

supervisory authority over the employee and the employee did not reasonably believe that the harasser had

such authority, then the standard of liability for co-worker harassment applies. Id.

139 The Supreme Court has held that a claim for constructive discharge is available under Title

VII when the harassment is so egregious or intolerable that quitting is a fitting response, and no affirmative

defense is available when the constructive discharge is caused by an official company act, such as when a

person quits in response to a humiliating demotion, an extreme cut in pay, or a transfer to a position that is

unbearable. See Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).

15-41

After the first project Kyra was assigned to work on was complete,Kyra had trouble getting assigned to another project because otherteam leaders incorrectly assumed that Kyra’s work was substandard.When she raised the issue with management, she was told that thecompany had always had a word-of-mouth assignment system, andshe needed to learn how to “play with the boys.” The evidencesupports the conclusion that Kyra was subjected to a hostile workenvironment because of her race, sex, or the intersection of both, inlight of the pattern of offensive comments and evidence that the biasaltered the terms and conditions of Kyra’s employment.

3. Employer Liability

Employers and employees each have an essential role in preventing race harassment. Whenemployers and employees both take appropriate steps to prevent and correct harassment, offensiveconduct generally will be corrected before escalating to the point of violating Title VII.

Conduct of Supervisors

The rules for liability differ depending on whether the harasser is a supervisor. Anindividual qualifies as an employee’s supervisor if the individual has authority to undertake orrecommend tangible employment decisions affecting the employee, or the individual has authorityto direct the employee’s daily work activities.138 As a general rule, employers are responsible forthe behavior of their supervisors because employers act through their supervisors.

Thus, any time discrimination by a supervisor results in the victim suffering a tangibleemployment action, such as being fired (or quitting in response to intolerable harassmentaccompanied by an official company act),139 demoted, not promoted, or docked in pay, the employeris automatically liable, and there are no defenses available to the employer. For example, if asupervisor has a racially motivated grudge against an employee and acts on it by denying theemployee a raise otherwise deserved under the employer’s pay system, the employer would beautomatically liable and no defense would be available.

140 See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher, 524 U.S. at 807.

The failure to complain is not necessarily fatal if it was not unreasonable – for example, if the victim can

establish that he or she reasonably believed, based on evidence (not mere speculation), that a complaint would

result in retaliation, or that there were obstacles to making or filing a complaint, or that the employer’s

complaint mechanism otherwise was ineffective.

141 Compare with, e.g., Spriggs, 242 F.3d at 188-89 (jury could conclude that employer did not

meet duty to prevent and correct supervisor’s racial harassment: Black Plaintiff complained to management

that his White supervisor repeatedly used epithets such as “n-----” and “monkey” to describe Plaintiff and

Blacks generally, as well as to describe the supervisor’s own wife (who was Black), but management

downplayed the complaints, tried to defend the conduct, or responded with indifference, and thus the conduct

continued).

15-42

There is an exception to the general rule that applies when the supervisor’s harassment wasnot tangible – i.e., the case involves a hostile work environment instead of a firing, demotion, paycut, etc. In this situation, the employer avoids liability if it proves the elements of the followingaffirmative defense:

! The employer exercised reasonable care to prevent and correct promptly anyharassing behavior; and

! The employee unreasonably failed to take advantage of any preventive or correctiveopportunities provided by the employer or to avoid harm otherwise.140

EXAMPLE 20EMPLOYER NOT LIABLE FOR UNLAWFUL

HARASSMENT BY A SUPERVISORCarla, an Asian American, claims that she was subjected to frequentoffensive comments based on race and sex by her first-levelsupervisor. Carla was aware of the employer’s anti-harassmentcomplaint procedures, but did not notify her employer; nor were thereextenuating circumstances explaining her failure to follow theemployer’s procedures. The employer learned of the harassmentfrom Carla’s coworker, and immediately conducted an investigation.The employer reprimanded the supervisor and transferred him toanother division. The employer is not liable for the harassmentbecause it took reasonable preventative and corrective measures andCarla unreasonably failed to complain about the harassment.141

For a full discussion of the affirmative defense for supervisory harassment, see EnforcementGuidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999),available at http://www.eeoc.gov/policy/docs/harassment.html.

142 Faragher, 524 U.S. at 789-90.

143 See, e.g., Reedy, 333 F.3d at 910 (reversing summary judgment for employer because “Reedy

offered sufficient evidence that Quebecor knew or should have known about the harassment but failed to take

prompt and effective remedial action”).

144 See, e.g., Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278-79 (11th Cir. 2002) (under

circuit precedent the employer did not have actual notice that Mexican employee was being called epithets

such as “Julio,” “taco,” and “sp--,” but there was “ample evidence” that it had constructive notice: harasser’s

supervisor’s office was located in the department where much of the abuse occurred; and the abuse occurred

up to three to four times each day and in the presence of others).

15-43

Conduct of Owner, President, Partners, or Officers

If the harasser is of a sufficiently high rank to fall “within that class . . . who may be treatedas the organization’s proxy,”142 the employer cannot raise the affirmative defense even if theharassment did not result in a tangible employment action. Examples of officials who qualify as“proxies” or “alter egos” include a president, an owner, partners, and corporate officers.

Conduct of Co-Workers and Non-Employees

For the unlawful harassing conduct of non-supervisory employees, or non-employees overwhom the employer has control (e.g., independent contractors or customers on the premises), theemployer will be liable if it knew or should have known about the conduct and failed to take promptand appropriate corrective action.143 This means that an employer should have an anti-harassmentpolicy and complaint procedure and should be vigilant enough to detect harassing conduct that itreasonably should know about even without a complaint.144 It should also create an environmentin which employees feel free to raise concerns, and are confident that those concerns will beaddressed. Victims of harassment, in turn, should make sure management knows about theharassing conduct.

EXAMPLE 21EMPLOYER LIABLE FOR UNLAWFUL HARASSMENT

BY A NON-EMPLOYEE OVER WHOM IT HAS CONTROLCharles is a frequent visitor on XYZ Senior Community’s“neighborhood days,” when XYZ allows senior citizens in theneighborhood to visit its residents. During his visits, Charles oftenyells derogatory comments about Blacks and Latinos at Cheryl, aBlack employee of Puerto Rican national origin, and has even pushedand tripped her on a few occasions. Cheryl complains about theconduct to a manager, and is told that XYZ cannot take any actionagainst Charles because he is not a resident. On subsequent visits,Charles continues to yell racial and ethnic slurs at Cheryl, and shefiles an EEOC charge. XYZ is liable for the actions of Charles, anon-employee, because it had the power to control Charles’s access

145 See 42 U.S.C. § 2000e-2(a)(1) (unlawful “to discriminate . . . with respect to . . .

compensation, terms, conditions, or privileges of employment”); Section 2: Threshold Issues, EEOC

Compliance Manual, § 2-II.B.1, available at http://www.eeoc.gov/policy/docs/threshold.html; Section 613:

Terms, Conditions and Privileges of Employment, EEOC Compliance M anual, Volume II.

15-44

to the premises, was aware of Charles’s offensive conduct, and didnot take corrective action.

B. RACIAL BIAS IN OTHER EMPLOYMENT TERMS AND CONDITIONS

Even if a company works hard to recruit and hire in a way that provides equal opportunity,and even if it maintains a harassment-free workplace, it still must ensure that race is not otherwisea barrier to employee success. Employers cannot permit race bias to affect work assignments,performance measurements, pay, training, mentoring or networking, discipline, or any other term,condition, or privilege of employment.145

1. Work Assignments

Work assignments are part-and-parcel of employees’ everyday terms and conditions ofemployment and are also important for gaining valuable on-the-job experience. Work assignmentsmust be distributed in a nondiscriminatory manner. This means that race cannot be a factor indetermining the amount of work a person receives, or in determining who gets the more, or less,desirable assignments.

EXAMPLE 22WORK ASSIGNMENTS

After receiving an advanced business degree, Mary was hired as anentry-level associate at a management and technology consultingfirm. She was the only Black associate among the new entry-levelassociates. Most of the firm’s managers are White males. Initially,as with other new associates, Mary received routine assignments, andconsistently met the expectations of the assigning managers. But asother associates became increasingly busy with complex, long-termprojects, Mary noticed that she continued to receive projects thatwere short-term and routine. At her six-month performance review,the firm told Mary that her performance was good, and she receiveda bonus on par with other associates. She told the reviewers that shewould like to receive more demanding work. Nevertheless, Mary’sdifficulty getting choice assignments became compounded in theremaining half of the year as managers gave important work to thoseassociates who had successfully handled it for them in the past. Thishappened despite Mary’s repeating on several occasions her requestfor more challenges. After a year at the firm, it was clear that hercontemporaries had much higher standing in the firm than she did, asreflected in the low pay raise she received as compared to others.

146 Cf. Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th Cir. 2002) (in this

circuit, among the employment actions an employee may challenge are those that “reduce the employee’s

career prospects by preventing him from using the skills in which he is trained and experienced, so that the

skills are likely to atrophy and his career is likely to be stunted”).

15-45

Mary opted to seek a fresh start with another firm. Soon after, Maryfiled a charge against the employer alleging race discrimination in theterms and conditions of her employment. The employer cannot offer,and the investigation does not reveal, a credible nondiscriminatoryexplanation for Mary’s treatment. Thus, the evidence suggests thatrace bias affected how managers assigned Mary work, which in turnstalled her career development and affected her pay.146

2. Performance Evaluations

Performance evaluations frequently serve as the basis for numerous other employmentdecisions, such as pay, promotions, and terminations. They should be unaffected by race bias.

EXAMPLE 23PERFORMANCE EVALUATIONS

Daniel is a customer service representative, and the only AfricanAmerican in his unit. Until recently he has received uniformly stellarperformance ratings, received performance awards, and earned agood reputation among his customers and colleagues. Things beganto change, however, when a new supervisor was assigned a year agoto manage his unit. While Daniel had long been rated one of the bestemployees, the new supervisor began rating Daniel as below average,which has affected Daniel’s quarterly bonuses. He files a chargealleging race discrimination. A review of the performanceevaluations of Daniel and others in his unit reveals that whileDaniel’s overall performance rating has dropped markedly, theratings of his counterparts have gone up. Significantly, on the mostobjective part of his performance evaluation – “quantity of results,”which measures the number of accounts serviced – Daniel was ratedbelow average when in actuality he serviced more accounts thanpersons with higher ratings in this performance category. In addition,there is evidence that the supervisor undermined Daniel’sprofessional standing with customers – for example, by taking overmeetings Daniel was supposed to lead, and refusing to correct acustomer’s clearly mistaken belief that Daniel was responsible for anerror. This treatment is markedly different than that of Daniel’scolleagues. The investigation reveals no evidence of anondiscriminatory reason – such as a pure personality clash (i.e., one

147 See supra note 38, regarding “personality conflict” as a potential mask for unconscious bias.

148 See Thomas, 183 F.3d at 62-65 (denying summary judgment for employer because reasonable

person could conclude Plaintiff’s layoff was based on racially biased performance evaluations: after a new

supervisor was hired, Plaintiff, the office’s only African American customer service representative, went from

being one of the highest rated employees to one of the lowest rated, and the evidence suggested that the new

supervisor deliberately undermined Plaintiff’s work, rated Plaintiff harsher than Whites, and that Plaintiff’s

earlier high ratings were more accurate).

149 See Vaughn v. Edel, 918 F.2d 517, 522 (5th Cir. 1990) (suit by Black female terminated as

part of cost-cutting staff reductions; company had refrained from criticizing, counseling, or giving poor

performance ratings to Plaintiff for fear of triggering a charge of discrimination; court upheld company

liability because evidence established that if Plaintiff were White the company would not have inflated her

performance ratings and would have criticized and counseled her, all of which would have given her an equal

chance to improve to a level that would have prevented her termination). Similarly, it would violate Title VII

to avoid hiring Blacks or other people of color for fear that a later employment decision (e.g, discipline,

nonpromotion, layoff) might trigger a discrimination charge.

15-46

not rooted in the alleged bias)147 – that explains Daniel’s treatment.There is reasonable cause to believe Daniel’s performanceevaluations, and thus his pay, were racially discriminatory.148

3. Training and Constructive Feedback

Training is important for employees to become proficient in their jobs and to prepare foradvancement. This includes both formal training and informal training through feedback fromsupervisors. As with other aspects of the employment relationship, race cannot be a factor in whoreceives training and constructive feedback.

EXAMPLE 24TRAINING AND CONSTRUCTIVE FEEDBACK

Tina, a brown-skinned woman of Mexican descent, is a new officeclerk. Her primary duties are to sort and file purchase orders andinvoices. Within a few weeks, it is clear to the employer that Tina isprocessing her purchase orders and invoices too slowly due tomistakes. The employer terminates Tina, who then files a chargealleging race discrimination. The investigation reveals that althoughWhite employees who perform at a substandard level are coachedtoward increasingly good performance, Tina and other employees ofcolor get less feedback and thus tend to repeat mistakes and makenew ones that could have been avoided. The evidence establishesthat the employer unlawfully terminated Tina.149

150 Cf. Firefighters Institute for Racial Equality v. City of Saint Louis , 549 F.2d 506, 514-15 (8th

Cir. 1977) (City was liable under Title VII for White firefighters’ exclusion of Blacks from their “supper

clubs,” informal eating arrangements among on-duty firefighters at firehouses using employer-provided

cooking facilities; court ordered Fire Department to issue regulations prohibiting segregated use of City

kitchen facilities such that City “may comport with its duty to provide a nondiscriminatory working

environment,” adding that “the inclusion of Blacks and the reduction of racial tension in firehouses cannot

help but aid the City as an employer where the job at hand requires the close cooperation of its employees

and a concerted team effort”); Meritor, 477 U.S. at 65-66 (citing Firefighters with approval). But cf.

Domingo v. New England Fish Co., 727 F.2d 1429, 1438 (9th Cir. 1984) (holding rationale of Firefighters

inapplicable because, while seating in Alaska cannery mess hall was racially segregated, there were no

employer seating restrictions, and plaintiffs failed to offer evidence that their segregated eating was not by

choice).

15-47

4. Workplace Networks

Informal workplace networks can be just as important to an organization as official job titlesand reporting relationships. Thus, an employee’s success may depend not only on his or her jobduties, but also on his or her integration into important workplace networks. Employers cannotallow racial bias to affect an employee’s ability to become part of these networks.

EXAMPLE 25WORKPLACE NETWORKS

Suhail, of Arab descent, works for a computer software company.The company thrives on active socializing between employees anddecisionmakers both on and off the job – from lunch outings, after-work happy hours and weekend golf outings, to children’s birthdayparties and family barbeques. Many employees establish strongrelationships with decisionmakers through these informal networks,and as a result, tend to get put on the plum projects and get the plumpromotions. Suhail has experienced difficulty in buildingrelationships with decisionmakers because he often receivesinvitations late or indirectly from peers, rather from thedecisionmakers themselves. After being passed over for severalimportant projects, Suhail files a charge alleging race/national origindiscrimination because he believes he is being excluded from hisworkplace network for reasons related to his Arab descent. Suhail’sexclusion would be actionable if it affects the terms and conditionsof his employment.150

5. Appearance and Grooming Standards

Appearance standards generally must be neutral, adopted for nondiscriminatory reasons,consistently applied to persons of all racial and ethnic groups, and, if the standard has a disparate

151 Employer appearance and grooming standards also may raise discrimination issues with

respect to other protected bases, such as national origin, gender, or religion. When an employee’s dress or

appearance is religiously-based, an employer has an affirmative duty to accommodate the em ployee’s

religious beliefs, unless doing so would pose an undue hardship. For a detailed discussion of religious

accommodation and undue hardship, refer to 29 C.F.R. § 1605.2.

152 See Officers for Justice v. Civil Service Comm’n of City and County of San Francisco, 395

F. Supp. 378, 380-81 (D.C. Cal. 1976) (granting preliminary injunction eliminating pre-selection requirement

of a height of 5 ft. 6 in. for certain police officers; holding plaintiffs were likely to succeed at trial on

argument that the requirement had a disparate impact on Asian Americans, Latinos, and females, and the city

was unlikely to be able to demonstrate job relatedness and business necessity), cited with approval in Dothard

v. Rawlinson, 433 U.S. 321, 332 n.15 (1977) (height and weight requirement had disparate impact on

women).

153 By the same token, an employee whose clothing complies with the dress code cannot be

forced to wear cultural attire. See Bryant v. Begin Manage Program, 281 F. Supp. 2d 561 (E.D.N.Y. 2003)

(reasonable jury could find race discrimination where Plaintiff, an African American who wore business suits

on “casual days,” was pressured by her African American supervisor to wear afro-centric clothing even

though the dress code made no mention of afro-centric clothing, and Plaintiff was replaced by an African

American who did wear afro-centric attire).

15-48

impact, it must be job-related and consistent with business necessity.151 The following are examplesof areas in which appearance standards may implicate Title VII’s prohibition against racediscrimination:

! Height and Weight: Standards for height and weight sometimes are challenged ashaving an unlawful adverse impact. For example, a requirement that employees beat least six feet tall might have an adverse impact on Asian Americans due to averageheight and weight differences, and thus such a requirement would need to be job-related and consistent with business necessity.152

! Dress: An employer can impose the same dress code on all workers in similar jobs,regardless of their race or ethnicity, as long as the policy was not adopted fordiscriminatory reasons and is enforced evenhandedly. However, an employer musttreat racial or ethnic attire that complies with the dress code the same as other attirethat complies with the dress code.153 For example, Title VII prohibits employersfrom banning the wearing of traditional Hawaiian dress that complies with theemployer’s dress code requirements.

! Hair: Employers can impose neutral hairstyle rules – e.g., that hair be neat, clean,and well-groomed – as long as the rules respect racial differences in hair textures andare applied evenhandedly. For example, Title VII prohibits employers frompreventing African American women from wearing their hair in a natural, unpermed“afro” style that complies with the neutral hairstyle rule. Title VII also prohibitsemployers from applying neutral hairstyle rules more restrictively to hairstyles worn

154 See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999) (court held a reasonable

jury could find Title VII violation where company prevented Black female from wearing hair in a “finger

waves” hairstyle and in other hairstyles deemed “too eyecatching,” while not subjecting White women to such

standards, and even though the company admitted Plaintiff’s hairstyles complied with company policy that

hairstyles be neat, well-groomed, and safe); Rogers v. American Airlines, 527 F. Supp. 229, 232-34 (S.D.N.Y.

1981) (holding that a neutral employer policy against women wearing braids or cornrows was not a race-

based distinction, and thus such a policy would violate Title VII only if it had a disparate impact on Black

women and was not job-related and consistent with business necessity, or if the policy were applied in a

discriminatory manner; the court also stated in dicta that an employer policy banning “afro” hairstyles likely

would be a race-based distinction in violation of Title VII because, unlike braids or cornrows, an “afro” is

the product of natural hair growth rather than artifice).

15-49

by African Americans.154

! Beards: Employers generally can require employees to be clean-shaven. However,Title VII requires an employer to make exceptions to a no-beard policy for men withpseudofolliculitis barbae, an inflammatory skin condition that occurs primarily inBlack men and that is caused by shaving, unless being clean-shaven is job-relatedand consistent with business necessity (see Example 9 and accompanying footnote).

6. Compensation

Employees must receive compensation without regard to race. All forms of compensationare covered, such as salary, overtime pay, bonuses, stock options, expense accounts, commissions,life insurance, vacation and holiday pay, and benefits.

EXAMPLE 26COMPENSATION

Andrew Kim, of Korean descent, alleges that he is beingdiscriminatorily paid less than his White counterparts. The employercites Kim’s performance as the reason for his lower pay. Theinvestigator then compares the compensation of Kim and similarlysituated employees, according to the factors the employer says gointo salary (experience (“Exp.”) and performance rating (“Perf.”)):

Protected

Class

Salary Salary

Factors

Not in

Protected

Class

Salary Salary

Factors

Kim (CP) $28,000 Exp. = 3 yrs

Perf. = 3

Smith $31,000 Exp. = 3 yrs

Perf. = 4

Thomas $34,000 Exp. = 5 yrs

Perf. = 4

Adams $37,000 Exp. = 5 yrs

Perf. = 5

15-50

The employer’s explanation for Kim’s salary is credible because itaccounts for the pay disparity. While Kim has the same amount ofexperience as Smith, Kim’s performance rating is one point lower.There is no evidence that the performance rating itself wasdiscriminatory. The $3000 difference between the pay of Kim andSmith is in line with the $3000 differences between the pay of Smithand the other non-Asian American employees. The evidence doesnot indicate discrimination.

For further information on discrimination in compensation, seeSection 10: Compensation Discrimination (2000), available athttp://www.eeoc.gov/policy/docs/compensation.html.

7. Discipline and Discharge

Discipline and discharge decisions are typically based on either employee misconduct orunsatisfactory work performance. Such rules and policies regarding discipline and discharge mustbe enforced in an evenhanded manner, without regard to race.

EXAMPLE 27DISCIPLINE AND DISCHARGE

Monica, a Filipino sales representative, is the only person of color inher district. Monica’s job requires that she travel to the offices ofclients and potential clients to market company products. Companypolicy requires sales representatives to be in the field from 8:30 a.m.to 5:30 p.m., and that they make sales calls on at least seven clientseach and every day. Actual practice, however, is different. Mostsales representatives “bank” their sales calls so that if they have aparticularly productive day, they record the “extra” sales calls asoccurring on a less productive day. When Monica learns that thepractice is common among sales representatives, she begins to do ittoo, because she likes the flexibility that it offers. Things changeafter the company assigns a new District Manager to Monica’sdistrict. The new manager tells Monica that “banking” sales calls isagainst policy and that he intends to ask the Regional Manager forpermission to discipline Monica, which would deny her a bonus andmake her a candidate for layoff. When Monica protests that othersales representatives in her district use the same practice, hersupervisor feigns ignorance and does nothing about it. The RegionalManager approves the discipline based upon the District Manager’srecommendation. Monica files a charge alleging race discrimination.The investigation does not reveal a credible and persuasivenondiscriminatory explanation for what otherwise appears to be a

155 See Ellerth, 524 U.S. at 762 (company may be vicariously liable for tangible employment

action taken after review by higher level supervisors; citing with approval Shager v. Upjohn Co., 913 F.2d

398, 405 (7th Cir.1990) (committee was unaware of discriminatory animus driving supervisor’s

recommendation, but company was liable because the committee “acted as the conduit of [the supervisor’s]

prejudice – his cat's paw”)).

156 See 42 U.S.C. § 2000e-3(a). See Johnson v. University of Cincinnati , 215 F.3d 561, 579-81

(6th Cir. 2000) (affirmative action official who alleged discrimination not based on his status as an African

American, but based on his advocacy for increased employment opportunities for minorities and women,

could bring a claim under §704(a) of Title VII for retaliation). The other statutes enforced by EEOC also

prohibit retaliation. See 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. §§ 12203(a), (b) (ADA); 29 U.S.C.

§ 215(a)(3) (Equal Pay Act).

15-51

racial double standard. Thus, it is likely that Monica’s discipline wasracially motivated, in violation of Title VII.155

C. RETALIATION

Employees have a right to be free from retaliation for their opposition to discrimination ortheir participation in an EEOC proceeding by filing a charge, testifying, assisting, or otherwise participating in any manner in an investigation, proceeding, or hearing under Title VII.156 There arethree essential elements of a retaliation claim:

! Employee Protected Activity – opposition to discrimination or participation in thestatutory complaint process;

! Employer Adverse Action – any adverse treatment (beyond a petty slight or a trivialannoyance) that is based on a retaliatory motive and is reasonably likely to deterprotected activity; and

! Causal Connection – between the protected activity and the adverse action.

EXAMPLE 28RETALIATION

Pedro files a charge alleging discrimination because of his race,Black, and his national origin, Dominican. In the months followinghis charge, Pedro begins receiving less and less overtime work. Hefiles another charge alleging that the denial of overtime is retaliatory.The employer states that Pedro was not assigned overtime becausethere is less work. The investigation reveals no significant change inthe amount of overtime available before and after Pedro’s charge.Other employees with similar qualifications as Pedro have continuedto be assigned overtime at approximately the same rate. These factsestablish that Pedro has been subjected to retaliation for filing acharge, in violation of Title VII.

157 The caps on damages do not apply to suits filed under 42 U.S.C. § 1981, which also prohibits

race discrimination in employment. See supra note 9.

158 See 42 U.S.C. § 2000e-2(m) (proof that race was motivating factor establishes unlawful

employment practice, even though other factors also motivated the practice); 42 U.S.C. §2000e-5(g)(2)(B)

(limiting remedies when employer demonstrates that it would have taken same action in the absence of the

impermissible motivating factor).

15-52

For a detailed discussion of the prohibition against retaliation, refer to Section 8: Retaliation, EEOCCompliance Manual (1998), available at http://www.eeoc.gov/policy/docs/retal.html.

15-VIII REMEDIES

In a disparate treatment case, the statute allows the following remedies (as applicable):injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s feesand costs, compensatory damages for any past or future out-of-pocket losses and any emotionalharm, and punitive damages if the employer acted with malice or with reckless indifference to theindividual’s federally protected rights. Punitive damages are unavailable against a federal, state, orlocal government employer.

The law places caps on the sum of compensatory and punitive damages for which anemployer may be liable. The caps are based on the size of the employer’s workforce:

! Employers with 15 - 100 employees: up to $50,000

! Employers with 101 - 200 employees: up to $100,000

! Employers with 201 - 500 employees: up to $200,000

! Employers with 501 or more employees: up to $300,000

See 42 U.S.C. § 1981a(b). The caps apply to the sum of: punitive damages, and compensatorydamages for emotional harm and future pecuniary losses. The caps do not apply to back pay andinterest on back pay, front pay, or past pecuniary losses.157 For further information, see EnforcementGuidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of1991 (1992), available at http://www.eeoc.gov/policy/docs/damages.html.

In a “mixed motives” case, in which an employment decision was motivated in part by racebut the employer proves it also was motivated in part by a nondiscriminatory reason that would haveresulted in the same decision by itself, Title VII still is violated but the remedies available arelimited. The law allows declaratory relief, injunctive relief, and attorney’s fees and costs, but notreinstatement, hiring, back pay, or compensatory or punitive damages.158

In an “after-acquired evidence” case, in which an employment decision was motivated byrace but the employer proves that it subsequently discovered evidence of the applicant’s oremployee’s wrongdoing that would have led to a similar decision on legitimate grounds even absent

159 See 42 U.S.C. § 1981a(a)(1) (compensatory and punitive damages not available for “an

employment practice that is unlawful because of disparate impact”).

15-53

discrimination, Title VII still is violated. However, the remedies available are limited as follows:back pay is generally limited to the period from the date of the unlawful employment action to thedate that the misconduct was discovered, compensatory damages are typically excluded for out-of-pocket losses incurred after the date that the evidence of wrongdoing was discovered, andreinstatement (or instatement) and front pay are not available. Other remedies, includingcompensatory damages for emotional harm and punitive damages, are not affected. For a fullerdiscussion of after-acquired evidence, see Enforcement Guidance on After-Acquired Evidence andMcKennon v. Nashvil le Banner Publishing Co. (1995), avai lable athttp://www.eeoc.gov/policy/docs/mckennon.html.

In a disparate impact case, in which a policy or practice has a significant disparate impactbut cannot be justified by job-relatedness and business necessity, the employee is entitled toinjunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, and attorney’sfees and costs. Compensatory damages and punitive damages are not available in disparate impactcases.159

15-IX LPROACTIVE PREVENTION7

The following are examples of best practices for employers – proactive measures designedto reduce the likelihood of Title VII violations and to address impediments to equal employmentopportunity.

General

! Develop a strong EEO policy that is embraced by the CEO and top executives,train managers and employees on its contents, enforce it, and hold companymanagers accountable.

! Make sure decisions are transparent (to the extent feasible) and documented.The reasons for employment decisions should be well explained to affected persons.Make sure managers maintain records for at least the statutorily-required periods.

Recruitment, Hiring, and Promotion

! Recruit, hire, and promote with EEO in mind, by implementing practices designedto widen and diversify the pool of candidates considered for employment openings,including openings in upper-level management.

! Monitor for EEO by conducting self-analyses to determine whether currentemployment practices disadvantage people of color, treat them differently, or leaveuncorrected the effects of historical discrimination in the company.

160 Harvard Business School Professor David A. Thomas found in a three-year study of several

large corporations that high quality mentoring was one of the most salient features of the careers of high-

potential Blacks who successfully made it to the upper executive level. Professor Thomas also found that the

career trajectories of Black executives differed markedly from the career trajectories of White executives.

High-potential Whites who ultimately reached the executive level entered a fast track much earlier in their

careers than high-potential Blacks. Blacks who reached the executive level were much more likely to have

distinguished themselves through special projects, task force assignments, turnaround assignments, a change

in location, or having a highly visible big success. See David A. Thomas, The Truth About Mentoring

Minorities: Race Matters, HARVARD BUSINESS REVIEW (April 2001).

15-54

! Analyze the duties, functions, and competencies relevant to jobs. Then createobjective, job-related qualification standards related to those duties, functions,and competencies. Make sure they are consistently applied when choosing amongcandidates. Identify and remove barriers to EEO – such as word-of-mouthrecruiting in a workforce that does not reflect the diversity of the qualified labormarket, or employment tests – if they cannot demonstrably be tied to jobperformance and business necessity.

! Develop the potential of employees, supervisors, and executives with EEO in mind,by providing training and mentoring to give workers of all backgrounds theopportunity, skill, experience, and information necessary to perform well, and toascend to upper-level jobs.160

! Make sure promotion criteria are made known, and that job openings arecommunicated to all eligible employees.

Harassment

To protect employees from unlawful racial (and other) harassment, employers shouldadopt a strong anti-harassment policy, periodically train each employee on its contents andprocedures, and vigorously follow and enforce it. The policy should contain:

! A clear explanation of prohibited conduct, including examples;

! Clear assurance that employees who make complaints or provide information relatedto complaints will be protected against retaliation;

! A clearly described complaint process that provides multiple, accessible avenuesof complaint;

! Assurance that the employer will protect the confidentiality of harassmentcomplaints to the extent possible;

! A complaint process that provides a prompt, thorough, and impartialinvestigation; and

! Assurance that the employer will take immediate and appropriate correctiveaction when it determines that harassment has occurred.

161 The Commission’s Best Practices Task Force Report uses the phrase “like me bias” to

describe one of the key general barriers to equal employment opportunity: “It is an axiom of human nature

that people often like to associate with other people who are like themselves. This enhances a comfort level

in working relationships. Such ‘like me’ bias may be conscious or unconscious. Nevertheless, the ‘like me’

syndrome can lead to a tendency to employ and work with people like oneself . . . .” See EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION, “BEST” EQUAL EMPLOYMENT OPPORTUNITY POLICIES, PROGRAMS,

AND PRACTICES IN THE PRIVATE SECTOR 27 (2d ed. 1998). The complete report is available at

http://www.eeoc.gov/abouteeoc/task_reports/practice.html.

15-55

For a full explanation of these points, see Enforcement Guidance: Vicarious EmployerLiability for Unlawful Harassment by Supervisors (June 1999), available athttp://www.eeoc.gov/policy/docs/harassment.html.

Terms, Conditions, and Privileges of Employment

! Monitor compensation practices and performance appraisal systems for patterns ofpotential discrimination. Make sure performance appraisals are based onemployees’ actual job performance. Ensure consistency, i.e., that comparable jobperformances receive comparable ratings regardless of the evaluator, and thatappraisals are neither artificially low nor artificially high. Allow employees, withoutnegative consequences, to have their appraisals reviewed and corrected whenappropriate.

! Develop the potential of employees, supervisors, and executives with EEO in mind,by providing training and mentoring that provides workers of all backgrounds theopportunity, skill, experience, and information necessary to perform well, and toascend to upper-level jobs.

! Promote an inclusive culture in the workplace by inculcating an environment ofprofessionalism and respect for personal differences. In addition, employees of allbackgrounds should have equal access to workplace networks.161

! Foster open communication and early dispute resolution. This will minimize thechance of misunderstandings escalating into legally actionable EEO problems. Inaddition, an alternative dispute-resolution (ADR) program can resolve EEOproblems without the acrimony associated with an adversarial process. Importantly,however, even if there is such a program, an employee still is free to file a charge ofdiscrimination with EEOC, and utilizing a company grievance procedure or otherADR mechanism does not suspend the running of the time period for filing an EEOCcharge. As a best practice, however, employers should consider expressly waivingin advance any defense related to an employee’s failure to adhere to the charge-filingtime period if the employee properly utilizes the employer’s ADR program.

! Protect against retaliation. Provide clear and credible assurances that if employeesmake complaints or provide information related to complaints the employer willprotect employees from retaliation, and consistently follow through on thisguarantee.